Kanekoa v. City & County of Honolulu

879 F.2d 607, 1989 WL 70020

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 1989
• Docket: Nos. 87-2636, 87-2844
• Status: Published

Opinions

WALLACE, Circuit Judge:

In this consolidated appeal, Charles Ka-nekoa, Warren Kanekoa (the Kanekoas), and Damien Melemai challenge the judgments in their actions under 42 U.S.C. § 1983 against the city and county of Honolulu (Honolulu) for violating their fourth amendment rights to a prompt probable cause hearing. The Kanekoas and Mele-mai contend that the determinations of no constitutional violation were erroneous as a matter of law. The Kanekoas further argue that the district judge erred in (1) instructing the jury, (2) admitting evidence of the circumstances surrounding their arrests, and (3) refusing to ask prospective jurors requested voir dire questions. The district court had jurisdiction pursuant to 28 U.S.C. § 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I

Early in the morning of August 1, 1984, two women complained to Honolulu police officer Sanderson that two men driving a green car were impersonating police officers. The women had recorded the license plate number of the car. While Officer Sanderson was acquiring further information from the women, he was alerted to an assault in progress at a nearby intersection. When Officer Sanderson arrived at the scene of the assault, he observed two men standing next to a green car which had the same license plate number given by the two women moments earlier. He also saw a third male lying on the sidewalk wincing in pain. Officer Sanderson arrested the two men. Warren Kanekoa was arrested on charges of impersonating a police officer, disorderly conduct, and assault; Charles Kanekoa was arrested on charges of impersonating a police officer and disorderly conduct. The Kanekoas do not contest that the police had probable cause to arrest them. Officer Sanderson took the Kanekoas to the police station, arriving at 4:47 a.m.

At the station, the Kanekoas’ property was inventoried, and they were fingerprinted, photographed, and given intoxilyzer tests. Warren and Charles Kanekoa registered blood alcohol levels of 0.14 and 0.08, respectively. The intoxilyzer reports were completed at 5:30 a.m. and approved at 7:00 a.m. Officer Sanderson’s report was completed at 8:30 a.m.

If the Kanekoas had not been intoxicated, they would have been interviewed by the police. Honolulu Police Department rules prohibit the police from interviewing suspects having a blood alcohol level greater than 0.05. Therefore, the Kanekoas were placed in custody until sober enough to be interviewed. During this time, the police continued to investigate the case. Detectives reviewed the Kanekoas’ criminal history reports and attempted to interview victims and witnesses.

At 11:33 a.m., the police interviewed Warren Kanekoa. The interview lasted approximately 15 minutes, followed by an off-the-record discussion lasting about one hour. The police interviewed Charles Ka-nekoa at 1:17 p.m. The interview lasted approximately 15 minutes, followed by an off-the-record discussion lasting about 45 minutes. In both instances, the off-the-record discussion concerned the suspects’ father, who was a member of the Honolulu police department.

The Kanekoas were released at about 2:40 p.m. and all charges were dropped. If the police had decided to pursue the case, the Kanekoas would have been taken before a neutral magistrate for a probable cause hearing.

Melemai was arrested on May 21, 1985, on charges of burglary. He was identified at the scene of the burglary by a witness. Melemai does not contest that the police had probable cause to arrest him. Melemai arrived at the police station at approximately 5:40 p.m. Pursuant to the same procedures used in the Kanekoas’ arrests, Mele-mai was given an intoxilyzer test. The test result was available at 8:00 p.m. and indicated a blood alcohol level of 0.14. Like the Kanekoas, Melemai was not interviewed immediately, but placed in custody until sober. In the interim, detectives continued to gather evidence, interview witnesses, and inspect the scene of the crime. The detective in charge of the investigation believed that a late-night or early-morning interview with Melemai would be inappropriate, and thus delayed the interview until morning. On the following day, the police interviewed Melemai from 11:15 a.m. to 12:30 p.m. Melemai was released at 1:30 p.m. and all charges were dropped. As with the Kanekoas, if the police had decided to pursue Melemai’s case, he would have been taken before a neutral magistrate for a probable cause hearing.

In a consolidated pretrial hearing, the district judge held that Honolulu was not entitled to qualified immunity as a defense to the actions. The judge found that Honolulu had maintained an official policy of violating suspects’ fourth amendment right to a prompt probable cause hearing. The judge refused to find Honolulu liable, however, reasoning that a fact finder must determine whether the police applied this practice to the Kanekoas and Melemai. On this factual issue, a jury found against the Kanekoas and a judge found against Mele-mai.

II

The Kanekoas and Melemai argue that their detentions violated the fourth amendment as a matter of law under Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (Gerstein). We review this question independently. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (McConney), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

In Gerstein, the Supreme Court held that the fourth amendment requires a judicial determination of probable cause as a “condition for any significant pretrial restraint of liberty.” 420 U.S. at 125, 95 S.Ct. at 868. As the Court explained,

a policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of a crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate’s neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State’s reasons for taking summary action subside, the suspect’s need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships.... When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty.

Id. at 113-14, 95 S.Ct. at 863 (emphasis added). A suspect arrested without a warrant, therefore, must be afforded a probable cause hearing before a neutral and detached magistrate “promptly after arrest.” Id. at 125, 95 S.Ct. at 868. The Kanekoas and Melemai argue that their detentions of nine hours and nineteen hours respectively were not “brief period[s] of detention” and therefore constituted a per se violation of Gerstein.

The Supreme Court has not established a specific time period in which a suspect must be afforded a probable cause hearing. See id. at 123-25, 95 S.Ct. at 867-69; Schall v. Martin, 467 U.S. 253, 275, 104 S.Ct. 2403, 2415, 81 L.Ed.2d 207 (1984). We have rejected any per se rules and have held that the time period required by the fourth amendment depends on the circumstances of each case. See Bernard v. City of Palo Alto, 699 F.2d 1023, 1025 (9th Cir.1983). We have observed that “[detention for less than 24 hours without a probable cause hearing would violate the Constitution in a particular case if the circumstances were such that the administrative steps leading to a magistrate’s determination reasonably could have been completed in less than 24 hours.” Id. Thus, whether the detention of the Kanekoas and Melemai violated the fourth amendment depends on the circumstances of their detention. Their request for a per se rule of unconstitutional delay is rejected.

The Kanekoas and Melemai next argue that under the circumstances their detention was unreasonable. They suggest that any delay beyond the period required for minimum booking procedures presumptively violates the fourth amendment. Although their booking procedures were completed within an hour after arrival at the police station, they remained in custody so that the police could interview them. They assert that Honolulu’s procedure of interviewing suspects prior to a probable cause hearing is not one of the “administrative steps incident to arrest” which justifies detention under Gerstein. Until now, our circuit has not been called upon to decide this issue.

Gerstein itself does not specify what constitutes “administrative steps incident to arrest.” We believe, however, that this very phrase suggests a somewhat flexible approach to what qualifies as an administrative step. Significantly, the Court did not speak of administrative steps necessary to an arrest, but rather of those “incident to” an arrest. For this reason, we disagree with Lively v. Cullinane, 451 F.Supp. 1000 (D.D.C.1978), which requires police to justify a delay in presentment “by a strong showing that it is necessitated by a substantial administrative need.” Id. at 1005 (emphasis added). We believe that the Court employed the phrase “incident to” in Gerstein because it recognized that police departments need some flexibility in prescribing their methods of processing different suspects. As the Fourth Circuit has observed, “administrative steps incident to a particular arrest will necessarily vary with geographical factors and with local police and court system practices as well as with innumerable factual exigencies.” Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1133, 1140 (4th Cir.1982). In Sanders v. City of Houston, 543 F.Supp. 694 (S.D.Tex.1982) (Sanders), aff'd mem., 741 F.2d 1379 (5th Cir.1984), the court rejected the interpretation of “administrative steps” as limited to transportation to the station, booking, and filing charges. The court looked to cases construing Fed.R.Crim.P. 5(a) for guidance on what procedures should be permissible before an accused is taken before a judicial officer. The court concluded that “administrative steps” included “completing paperwork, searching the suspect, inventorying property, fingerprinting, photographing, checking for prior record, laboratory testing, interrogating the suspect, verifying alibis, ascertaining similarities to other related crimes, and conducting line-ups.” Id. at 700.¹

As we read Gerstein, “administrative steps” include procedures which provide the police with basic information from the suspect. An interview may inform the police of the suspect’s identity, residence, competence, and whether it is safe to release the suspect pending further proceedings. Moreover, an interview may inform the police that the case is no longer worth pursuing. It provides an early opportunity for the suspect to exculpate himself. See Patzig v. O’Neil, 577 F.2d 841, 847 (3d Cir.1978) (detention reasonable in part because “police were processing [suspect], and were administering tests, the results of which might have been exculpatory.”); Sanders, 543 F.Supp. at 700; but see Mabry v. County of Kalamazoo, 626 F.Supp. 912, 914 (W.D.Mich.1986) (Mabry). We believe that the Kanekoas’ and Melemai’s interviews, under the circumstances, may have constituted administrative steps which justified detention. That the Kanekoas and Melemai were detained so that the police could conduct an interview did not violate the fourth amendment as a matter of law if they were not for the purpose of building a case. The question then becomes how promptly the interviews were held and whether they were for an illegal purpose.

The police delayed interviewing the Kanekoas and Melemai because the suspects were intoxicated when arrested. The Kanekoas and Melemai, conceding their insobriety, complain that the police presented no evidence in the district court to show that they were incoherent or uncooperative and therefore incapable of being promptly interviewed. Thus, they argue, their intoxication cannot serve as a basis for delaying the probable cause hearing. In United States v. Manuel, 706 F.2d 908, 914 (9th Cir.1983), the police delayed interrogating Manuel for approximately 18 hours because he was intoxicated. He claimed that this delay violated Fed.R.Crim.P. 5(a)’s requirement of prompt arraignment. We stated that “[questioning him [while intoxicated] would have been much more likely to produce an unfair and involuntary confession than the procedure actually used.” Id. at 914. We find this reasoning applies equally to the fourth amendment. We hold that any delays in conducting administrative procedures caused by the Kanekoas’ and Melemai’s intoxication were not unreasonable per se.

The question then is whether the delays were longer than necessary for the Kane-koas and Melemai to become sober. This factual issue was presented to the fact finders in both actions. We test the jury’s factual determination as to the Kanekoas by deciding whether any reasonable jury could have found the delay periods reasonable. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). Our test for findings by the district court in Melemai are whether they are clearly erroneous. McConney, 728 F.2d at 1200. We conclude that a reasonable jury could find the Kanekoas’ delay reasonable and a judge could find the Mele-mai delay was also reasonable without being clearly erroneous. The issue is not determined solely by counting hours and minutes. Instead, the totality of the circumstances must be evaluated, including the extent of inebriation and the time reasonably necessary to allow the suspect to become sober. Under the facts of this case, we cannot say that a finding that the delay was reasonable should be reversed.

The Kanekoas and Melemai make a serious accusation, charging that their detentions were caused by the police’s desire to gather evidence, interview witnesses, and build a case against them. We agree that the fourth amendment does not permit the police to detain a suspect merely to investigate. Llaguno v. Mingey, 763 F.2d 1560, 1568 (7th Cir.1985) (en banc). Such conduct does not constitute “administrative steps incident to arrest.” Indeed, it is inimical to the fourth amendment for the police to arrest now, and investigate later for probable cause. See Gerstein, 420 U.S. at 120 n. 21, 95 S.Ct. at 866 n. 21; see also Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1359, 1 L.Ed.2d 1479 (1957); United States v. Wilson, 838 F.2d 1081, 1085 (9th Cir.1988). But that did not happen here. The Kanekoas and Melemai concede that the police had probable cause to arrest them.²

The key issue is whether the detention was legal. The fourth amendment does not prohibit the police from investigating a suspect while the suspect is legally detained. Because the police had legitimate reasons for detaining the Kanekoas and Melemai, we cannot conclude as a matter of law that the police violated their fourth amendment rights by conducting an investigation while the suspects were in custody. Rather, this is an issue of fact: if the Kanekoas and Melemai were detained so the police could conduct an investigation, then the police violated their fourth amendment rights; but if the Kanekoas and Mele-mai were detained while the police promptly conducted administrative procedures, then the police did not violate their fourth amendment rights. See Mabry, 626 F.Supp. at 915 (whether police completed “requisite administrative steps” in reasonable amount of time is “question of fact for the finder-of-fact to resolve”). Which of these two occurred is to be determined by the fact finder. See McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.1984) (in section 1983 action against police predicated on fourth amendment violation, factual matters underlying the judgment of reasonableness is a question for the jury); Smiddy v. Varney, 665 F.2d 261, 265 (9th Cir.1981) (same), cert. denied, 459 U.S. 829, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982).

At the Kanekoas’ and Melemai’s respective trials, this issue was presented to the fact finder. In each case, the fact finder concluded that the detention was the result of administrative procedures which were conducted promptly. We do not believe these findings can be overturned. The Ka-nekoas’ and Melemai’s intoxication, combined with the police’s need to conduct interviews, provided strong evidence for the fact finder to conclude that the detentions were reasonable.

In arguing for reversal of these findings, the Kanekoas and Melemai stress Judge Takasugi’s pretrial order holding that Honolulu was not entitled to qualified immunity as a defense. Judge Takasugi’s order stated that the

defendants have developed and maintained an official policy totally disregarding the requirement of promptly charging the arrestee and promptly taking such arrestee before a magistrate for a hearing on probable cause or bail. The defendants have maintained a policy of delayed detention focusing on the 48th hour rather than on the concept of promptness.

In this order, however, Judge Takasugi did not rule on the issue of liability. The order did not purport to determine whether the Kanekoas’ and Melemai’s fourth amendment rights had been violated. To the contrary, the order held that a fact finder must determine if the police had applied the “official policy” to the Kanekoas and Melemai. We need not decide whether Judge Takasugi’s pretrial order was correct. That issue is not before us. We agree with Judge Takasugi that merely finding such an “official policy” does not prove that the Kanekoas’ and Melemai’s fourth amendment rights were violated as a matter of law. Judge Takasugi’s order does not require reversal of the fact finders’ determinations.

Ill

The Kanekoas contend that the district judge erred in instructing the jury. We review for an abuse of discretion. Hasbrouck v. Texaco, 842 F.2d 1034, 1044 (9th Cir.1987); United States v. Wellington, 754 F.2d 1457, 1463 (9th Cir.), cert. denied, 474 U.S. 1032, 106 S.Ct. 592, 593, 88 L.Ed.2d 573 (1985).

The district court instructed the jury that:

If you find that the delayed detention of plaintiffs resulted from defendants^] policy, which I have described to you, and/or if you find that plaintiffs were unreasonably denied their constitutional rights, then each of the plaintiffs is entitled to damages in such amount as in your judgment will fairly and adequately compensate them for harm which each of them suffered.

The Kanekoas assert that as instructed, the jury could have determined that even though their detention violated the Constitution, the police should be exonerated because the delay was reasonable.

The record reveals that the allegedly problematic language in this instruction was offered by the Kanekoas. Thus, the Kane-koas invited any possible error. In this circumstance, they cannot now complain. Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 58, 74 L.Ed.2d 62 (1982). We hold that the district court did not abuse its discretion in instructing the jury.

IV

The Kanekoas argue that the district judge erred in allowing the jury to hear evidence concerning the circumstances surrounding their arrests. The Kanekoas assert that such evidence was not relevant to the issue at trial: whether the Kanekoas were detained in violation of the fourth amendment. Moreover, the evidence was highly prejudicial; it permitted the jury to conclude the Kanekoas got what they deserved.

We review for an abuse of discretion. Maddox v. Los Angeles, 792 F.2d 1408, 1417 (9th Cir.1986). The trial judge has wide latitude in the admission of evidence. Lies v. Farrell Lines, Inc., 641 F.2d 765, 773 (9th Cir.1981). “Trial judges are better able to sense the dynamics of a trial than we can ever be, and broad discretion must be accorded them in balancing probative value against prejudice.” Longenecker v. General Motors Corp., 594 F.2d 1283, 1286 (9th Cir.1979) (citations omitted). The trial judge’s decisions on admissibility will not be disturbed unless there has been an abuse of discretion which resulted in prejudice. Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1342 (9th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 785, 98 L.Ed.2d 870 (1988).

This evidence introduced by Honolulu was relevant to the issue of damages. The evidence showed that the police had probable cause to arrest. Thus, the jury could find that even if the Kanekoas had received a probable cause hearing, the hearing would not have resulted in an earlier release. Honolulu presented this evidence to show that any damage caused by a delayed hearing was nominal. We cannot conclude, therefore, that the trial judge abused his discretion in admitting evidence of the circumstances surrounding the arrests.

V

Finally, the Kanekoas argue that the magistrate erred at voir dire by refusing to ask the prospective jurors certain specific questions submitted by the Kanekoas:

Do any of you believe that arrested persons have too many rights?

Do any of you believe that the Constitution should be changed because it provides to[o] many rights to criminals?

A trial judge is given wide latitude in conducting the voir dire. Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981) (plurality opinion). A trial judge’s failure to ask specific questions is reviewed for abuse of discretion. United States v. Jones, 722 F.2d 528, 529 (9th Cir.1983) (per curiam). A trial judge need not use questions in the exact form suggested by counsel, nor must the trial judge ask questions which are cumulative. Darbin v. Nourse, 664 F.2d 1109, 1113 (9th Cir.1981). A trial judge abuses his or her discretion if the questions asked are not reasonably sufficient to test the jury for bias or partiality. United States v. Baldwin, 607 F.2d 1295, 1297 (9th Cir.1979).

The Kanekoas’ suggested questions do not probe the prospective jurors’ ability to serve as impartial finders of fact. Rather, the Kanekoas' questions were designed to locate attitudes concerning the law. We do not rely on the jury to determine the law; it is the judge’s function to instruct the jury as to the law. Thus, the magistrate did not abuse his discretion.

AFFIRMED.

1 . The dissent states that our circuit in Bernard v. City of Palo Alto, 699 F.2d 1023, 1025 (9th Cir.1983), interpreted administrative steps as limited to procedures "necessary” to presentment of the case before a magistrate. Dissent at pp. 615-616. We disagree. Bernard did not address what constitutes administrative steps incident to arrest. There is nothing in Bernard to indicate that the suspects even argued that the police’s post-arrest procedures were not administrative steps. Thus, the issue of whether the fourth amendment restricts police to procedures "necessary” for presentment before the magistrate was not before our court. Rather, Bernard discussed the time limit under Gerstein before a suspect must be afforded a probable cause hearing. Bernard interpreted Gerstein’s "brief period" and "prompt” language for determining impermissible periods of delay in presentment, Bernard, therefore, does not conflict with our holding regarding administrative steps.

2 . The dissent asserts that our holding will encourage police to arrest without probable cause because a routine interview may later uncover facts to justify the arrest. Dissent at p. 617. Though sympathetic to the dissent’s concerns, we think them unfounded. It is axiomatic that police must have probable cause prior to executing an arrest. Any facts discovered during post-arrest procedures will not save an otherwise illegal arrest. Wong Sun v. United States, 371 U.S. 471, 480, 482-84, 83 S.Ct. 407, 413, 414-16, 9 L.Ed.2d 441 (1963); see also Mallory, 354 U.S. at 454, 77 S.Ct. at 1359. Our decision does not alter the incentives for police to arrest only on the basis of probable cause.

The dissent goes on to suggest that, by distinguishing between legal and illegal purposes for an interview, the determination of whether a delay in presentment before a magistrate violated a suspect's constitutional rights will depend solely upon the officers’ version of their subjective intentions in interviewing the suspect. Dissent at p. 617. We disagree. As occurred in this case, the fact finder will evaluate all the circumstances surrounding the arrest and detention — including such objective factors as the type of questions asked the suspect — to determine whether an interview was conducted to establish probable cause.