KRL v. Estate of Moore

512 F.3d 1184, 2008 U.S. App. LEXIS 880, 2008 WL 141819
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 16, 2008
Docket06-16282, 06-16284, 06-16286
StatusPublished
Cited by77 cases

This text of 512 F.3d 1184 (KRL v. Estate of Moore) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
KRL v. Estate of Moore, 512 F.3d 1184, 2008 U.S. App. LEXIS 880, 2008 WL 141819 (9th Cir. 2008).

Opinion

GOODWIN, Circuit Judge:

Defendants Russell Moore, 1 David Irey and Ron Hall appeal the district court’s denial of summary judgment based on qualified immunity for their involvement in preparing, reviewing and executing two search warrants, one issued on January 11, 1999 and the other issued on January 13, 1999. Defendants contend that although the two warrants lacked probable cause, their conduct was reasonable. We hold that Moore, Irey and Hall are entitled to qualified immunity for the January 11 warrant, but that Hall is not entitled to qualified immunity for the January 13 warrant. For this reason, we affirm in part, reverse in part and remand for further proceedings.

BACKGROUND

This ease originates from a criminal investigation into the removal and disposal of an underground gasoline storage tank located on property purchased by KRL, a California general partnership. Participants in the criminal investigation included Moore, a California Highway Patrol Officer; Irey, a deputy district attorney for San Joaquin County who specializes in environmental prosecutions; and Hall, an investigator employed by the Amador County District Attorney’s office. In December 1998, a grand jury indicted Robert Wom-ack and others on twenty-one counts, many of which concerned the storage, transportation and disposal of the underground gasoline storage tank. In September 2000, the Amador County District Attorney’s office transferred the criminal prosecution to the California Attorney General’s office, which dropped all charges.

On December 10, 1999, KRL and members of the Womack family (“Plaintiffs”) filed this 42 U.S.C. § 1983 action, claiming several constitutional violations. Before us on this appeal, eight years later, there remains just one alleged constitutional violation: a Fourth Amendment claim arising from the defendants’ preparation, review and execution of search warrants issued on January 11, 1999 (“January 11 warrant”) and January 13, 1999 (“January 13 warrant”) for a KRL property and Womack’s home address (the “Ridge Road Property”).

Moore prepared the January 11 warrant and supporting affidavit. Hall, who had conducted at least fifty interviews to investigate charges against Robert Womack, provided information for the affidavit. Both Hall and Irey read the affidavit and warrant, and confirmed the accuracy of the information.

Todd Riebe, a district attorney for Ama-dor County, reviewed the January 11 warrant and affidavit on January 4, 1999. After consulting with Moore and Irey on questions related to the warrant and affidavit, Riebe gave his approval. Moore obtained a magistrate’s approval on January 11,1999.

In the supporting affidavit, Moore stated that, from the totality of the circumstances, he understood there to be “a pattern and practice on the part of the [sic] Robert WOMACK and the WOMACK controlled businesses, which shows malice towards many, if not most, laws.” He said that the documents to be seized under the warrant would “help determine the entire *1187 scope of [the KRL] business activities that are permeated with fraud.”

The January 11 warrant, with Moore’s supporting affidavit incorporated by reference, authorized a search of the Ridge Road Property and seizure of all:

Partnership reports, paidouts, check books, registers, accounting paperwork, any and all insurance, memos, correspondence, or other documents relating to the control and operation of KRL Corporation and/or K.R.L. PARTNERSHIP, and articles of personal property tending to establish and identify the identity of persons in control of the premises, and other containers that may house aforementioned records, video tapes and/or audio tapes since January 1,1995 to the present.

The search pursuant to the January 11 warrant took place early in the day on January 13, 1999. Moore conducted the pre-search briefing, and both Moore and Hall participated in the search. During the search, officers discovered a 1990 ledger for the KRL Partnership and several checks. Because these documents exceeded the scope of the January 11 warrant, the officers stopped the search while Moore and Irey went to court to seek a new warrant that would permit seizure of the ledger, checks and other documents dating back to 1990. In an oral affidavit, Moore stated, “I believe that going back to the 1990 ledger will show how ... the funds from KRL Partnership are being divided between the parties.... ” Moore also stated his belief that the bank account from which the checks were written was “being used to divert funds from KRL Partnership for the purposes of hiding the funds.”

The magistrate approved the January 13 search warrant that afternoon. The warrant authorized a search of the Ridge Road Property and seizure of the same documents as those listed in the January 11 warrant. The January 13 warrant, however, changed the temporal scope of the documents to be seized from “January 1, 1995 to the present” to “January 1, 1990 to December 31, 1994.” Both the oral affidavit and Moore’s affidavit from the January 11 warrant were relied upon in their application to the magistrate for the January 13 warrant. The search pursuant to this warrant took place in the afternoon and evening of January 13,1999.

These facts were before us in KRL v. Moore, 384 F.3d 1105 (9th Cir.2004). In KRL, we concluded that defendants are entitled to absolute immunity to the extent that their conduct was prosecutorial rather than investigative. Id. at 1110-15. Absolute immunity is not at issue in this appeal. For defendants’ investigative conduct, we applied the two-step test from Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), to determine whether Riebe and Hall were entitled to qualified immunity. Under the first step, we affirmed the district court’s conclusion that a constitutional violation occurred because the warrants lacked probable cause. KRL, 384 F.3d at 1115-16. More specifically, we agreed that the January 11 and January 13 warrants lacked particularity as the warrants authorized a wide-ranging seizure of KRL documents. We acknowledged that “ ‘[t]he uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.’ ” Id. at 1115 (quoting Massachusetts v. Sheppard, 468 U.S. 981, 988 n. 5, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984)). However, we noted that the Ninth Circuit has recognized an exception to the particularity requirement where probable cause exists “to believe that a business is permeated with fraud.” Id. (citing United States v. Offices Known as 50 State Distrib. Co., 708 F.2d 1371, 1374 (9th Cir.1983)). Probable cause ex *1188

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Bluebook (online)
512 F.3d 1184, 2008 U.S. App. LEXIS 880, 2008 WL 141819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krl-v-estate-of-moore-ca9-2008.