Turngren v. King County

649 P.2d 153, 33 Wash. App. 78

• Court: Court of Appeals of Washington
• Decided: October 12, 1982
• Docket: 9382-7-I
• Status: Published

Opinions

Andersen, C.J.

Facts of Case

The plaintiffs, five members of the Elmer Turngren family, appeal the entry of summary judgments of dismissal of the defendants King County, King County Department of Public Safety, the City of Redmond and the City of Redmond Police Department.¹ We affirm.

This action for damages based on claims of tort and violation of civil rights arose out of the service of a search warrant at the Elmer Turngren residence on October 27, 1978 by officers of the King County Department of Public Safety and of other local and federal law enforcement agencies.

On or about October 25, 1978, an individual presented a .38 caliber pistol to a Redmond Police Department detective and inquired as to whether or not it was stolen. The individual indicated that he had acquired the pistol from another person who was known to the detective as an informant. This informant, on several past occasions, had supplied the detective with reliable information on a completely voluntary basis and without receiving any type of compensation for it. The detective checked out the pistol and ascertained that it had been stolen from a King County residence. The detective then contacted the informant who voluntarily agreed to a meeting to discuss what information he had concerning the pistol.

The Redmond detective thereupon contacted a detective in the King County Department of Public Safety. That detective then also questioned the informant and ascertained from the informant that he had personally observed automatic weapons, hand grenades, a pipe bomb and drugs at a King County residence, later identified as the Elmer Turngren residence. The informant related that the arsenal belonged to a person named "Keith" (Elmer Keith Turngren) who was then living at the Turngren home, that Keith had told him he was a "warlord" for the Hell's Angels motorcycle gang and that the weapons were going to be sold in the near future. Over the course of 2 days, the informant was questioned by at least three other law enforcement officers. During this time, the King County detective also tried to gather some background information on "Keith" but for the most part was unsuccessful.

The informant was then taken to the King County Prosecuting Attorney's Office where he was questioned for approximately an hour by a deputy prosecuting attorney. This questioning was with regard to both the substance of the informant's report and his past reliability and association with the Redmond detective. The deputy prosecuting attorney concluded that probable cause for a search existed and prepared an affidavit for a search warrant. The affidavit which described the informant's past reliability and detailed his recent observations at the Turngren home was duly sworn to by the two detectives and issuance of the warrant was approved in writing by the deputy prosecuting attorney.

The Redmond and King County Police detectives, along with the informant, then appeared before a district justice court judge on October 27, 1978. The judge placed them all under oath and questioned them further concerning the contents of the affidavit. The court found that probable cause for the issuance of the warrant existed and issued a search warrant for the Turngren home.

Due to extensive preparations to cordon off the Turngren neighborhood and otherwise insure the safety of the neighborhood residents, the search warrant was served later that day at approximately 10:30 p.m. Three members of the Turngren family were home at the time but no contraband of any kind was found and no criminal proceedings were ever instituted as a result of the search. At the time of the search, Keith had moved out. The King County detective said that he found that the closet in the bedroom where the informant had reported the weapons to be had been cleaned out.

In response to media requests, the King County Department of Public Safety issued a statement describing service of the warrant and its negative results. The written release stated:

On Oct. 27, 1978, at approx. 10:30 p.m., King County POLICE SERVED A SEARCH WARRANT FOR WEAPONS AT A HOME IN THE CITY OF KlRKLAND. In PREPARATION FOR THE WORST AND CONCERN FOR THE SAFETY OF CITIZENS IN THE AREA, IT WAS CORDONED OFF. THE SEARCH WARRANT WAS SERVED WITH NEGATIVE RESULTS.

Oral statements in a similar vein were also made in response to media questions.

In May 1979, the Turngrens brought this lawsuit. They ask damages based on a claim that the affidavit in support of the search warrant contained various intentional or reckless misrepresentations. The Turngrens also seek damages for allegedly defamatory statements made to the media by the police subsequent to the search. After approximately a year of pretrial discovery, the Superior Court entered orders on September 23, 1980 and September 30, 1980 granting summary judgments dismissing the action. The Superior Court judge who heard the motions for summary judgment also denied the Turngrens' motion to vacate the summary judgment orders and to disqualify himself.

The Turngrens' appeal presents four basic issues.

Issues

Issue One. Was summary judgment proper as to the common law tort claims?

Issue Two. Was summary judgment proper as to the violation of civil rights claim brought pursuant to 42 U.S.C. § 1983?

Issue Three. Was summary judgment proper as to the defamation claim?

Issue Four. Did the trial judge err by denying the Turngrens' motion to vacate the summary judgment orders and disqualify himself as judge?

Decision

Issue One.

Conclusion. Because the record does not raise a reasonable inference of malicious or reckless conduct on the part of the detectives in this case, summary judgment on the common law tort claims was proper.

In an action such as this one, the Turngrens, as plaintiffs, must show that the detectives maliciously or recklessly misrepresented material facts in the affidavit which resulted in the issuance of a warrant authorizing the search of their home. Ladd v. Miles, 171 Wash. 44, 17 P.2d 875 (1932); Clipse v. Gillis, 20 Wn. App. 691, 696, 582 P.2d 555 (1978). See 1 W. Ringel, Searches & Seizures, Arrests and Confessions § 22.3(c), at 22-22 (2d ed. 1981). Mere negligence in the criminal investigation will not suffice. Clipse v. Gillis, supra at 694-96.

While it has been said that the abandonment of prosecution is prima facie proof of lack of probable cause which in turn permits an inference of malice, see Pallett v. Thompkins, 10 Wn.2d 697, 699, 118 P.2d 190 (1941), "[h]owever, we have also said that such evidence of want of probable cause does not necessarily make a prima facie showing of the additional and essential element of malice", Barker v. Waltz, 40 Wn.2d 866, 870, 246 P.2d 846 (1952). Where there has been no affirmative showing of acts disclosing the least feeling of bitterness, animosity or vindictiveness, an inference of malice is not justified.² Barker v. Waltz, supra at 870, quoting Ton v. Stetson, 43 Wash. 471, 475, 86 P. 668 (1906).

Our review of the record in this case³ demonstrates an absence of any issue of material fact in regard to the detectives' allegedly malicious or reckless conduct.⁴ To the contrary, the record shows that the detectives, the deputy prosecuting attorney and the district court judge went to extraordinary lengths, particularly in light of the obvious need for prompt action, to verify the informant's information. Further, there is no affirmative showing of specific facts by the Turngrens, as there must be, that the representations to the district court judge concerning the informant's past reliability were made by the detectives with malicious intent or reckless disregard of the truth. In addition, the fact that counsel for the Turngrens chose to question the Redmond detective on some but not all of some ten instances evincing the informant's past reliability, cannot create an inference that the Redmond detective intentionally overstated the informant's reliability to the district court judge. Conclusory allegations, speculative statements or argumentative assertions that unresolved factual matters remain are not sufficient to preclude an order of summary judgment. Peterick v. State, 22 Wn. App. 163, 181, 589 P.2d 250 (1977); Dwinell's Cent. Neon v. Cosmopolitan Chinook Hotel, 21 Wn. App. 929, 933, 587 P.2d 191 (1978).

Issue Two.

Conclusion. Because the record does not raise an inference that the allegedly wrongful actions of the individual detectives were made pursuant to a governmental policy or custom, the trial court did not err in granting summary judgment on the breach of civil rights claim against King County, the City of Redmond and the respective police departments of these two municipal bodies.

42 U.S.C. § 1983, under which this claim was brought, provides in its pertinent part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

However, "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell v. Department of Social Servs., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).

The record in this case raises no reasonable inference that the allegedly wrongful actions of the individual detectives were done pursuant to an official policy or custom. Instead, the official policies and customs, as evidenced by the King County Department of Public Safety Training Bulletin 1.7, and the detectives' actions in going to the deputy prosecuting attorney prior to applying for the warrant and the meeting of senior law enforcement officers prior to the warrant's execution, were to insure that the search warrant was obtained and executed in a lawful and safe manner.

Issue Three.

Conclusion. Where, as here, there is no reasonable inference of perjury or malice, and the release of information about a criminal investigation by police officers or agencies is in response to the public's right to know, such release is a discretionary act concerning which the police officers and agencies are immune from liability. Summary judgment on the defamation claim was therefore appropriate.

The Turngrens ask damages on the basis of their claim that various statements by the police to the press were defamatory. As previously observed, however, the record does not raise a reasonable inference of malicious or reckless conduct on the part of the police at any stage of their investigation. Whether or not information provided to the press later proves inaccurate in some particulars, a county, city and their employees are immune from tort liability for their disclosures made concerning this criminal investigation. Moloney v. Tribune Pub'g Co., 26 Wn. App. 357, 360, 613 P.2d 1179 (1980).

Issue Four.

Conclusion. The Superior Court judge who heard the motions for summary judgment did not err in denying the Turngrens' motion asking that he disqualify himself since no bias, prejudice or personal knowledge of disputed facts was established.

The Turngrens ask that the summary judgments be vacated on the basis that the trial judge improperly based his decision on the high regard he held for the deputy prosecuting attorney who drafted the affidavit supporting the search warrant and the district court judge who issued it. The Code of Judicial Conduct provides that a trial judge should disqualify himself from a proceeding where he has a personal bias against a party or personal knowledge of disputed evidentiary facts. CJC 3(C)(1)(a).

Here the oral opinion by which the Superior Court judge granted summary judgment on September 23, 1980, concerning which the Turngrens now complain, was not reported by a court reporter. Either party had the right to have a reporter present but apparently one was not requested. We are reluctant to base a ruling on a matter of this sort based on affidavits of what a judge allegedly said or didn't say where a court reporter could have been requested by any party but was not. Bich v. General Elec. Co., 27 Wn. App. 25, 33-34, 614 P.2d 1323 (1980). In any event, there was a reported transcript of the Superior Court judge's oral opinion of September 30, 1980 on the motions to vacate. The record on that occasion demonstrates without question that the judge's previous decision had not been based on any bias, prejudice or personal knowledge of disputed evidentiary facts, but rather was based on his evaluation that the record was without any issue of material fact.

We have reviewed the Turngrens' remaining arguments and conclude that to the extent they may not be encompassed by our ruling on the other issues herein, they are without merit. The Superior Court did not err by entering summary judgments of dismissal.

Affirmed.

Durham, J., concurs.

1 The individual officers herein involved were dismissed as defendants by stipulation of all parties in the Superior Court.

2 Where, as here, a search warrant is valid on its face, and thus apparently supported by ample probable cause, the mere fact that the evidence sought was not found and the suspect not prosecuted does not, in and of itself, establish prima facie proof of lack of probable cause. See State v. Goodlow, 11 Wn. App. 533, 535-36, 523 P.2d 1204, review denied, 84 Wn.2d 1012 (1974). In such a situation, the Turngrens must go behind the warrant and make an initial showing of a misrepresentation of a material fact by the detectives or an intentional misrepresentation of any fact before an inference of lack of probable cause may arise. State v. Goodlow, supra; State v. Larson, 26 Wn. App. 564, 568-69, 613 P.2d 542 (1980). "The Fourth Amendment does not proscribe 'inaccurate' searches only 'unreasonable' ones." State v. Seagull, 95 Wn.2d 898, 908, 632 P.2d 44 (1981).

Moreover, even if we assume arguendo that the abandonment of the criminal investigation in this case establishes prima facie proof of lack of probable cause, an inference of malice therefrom is not justified because the record does not disclose any facts showing the least feeling of bitterness, animosity or vindictiveness on the part of the detectives toward the Turngrens. Barker v. Waltz, supra at 870, quoting Ton v. Stetson, 43 Wash. 471, 475, 86 P. 668 (1906).

3 The unsworn and unsigned statement of the informant reported by counsel for the Turngrens is hearsay, admissible only to impeach the credibility of the informant's deposition testimony and, as such, cannot create an issue of material fact. Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 643-44, 618 P.2d 96 (1980). Further, the unsworn "affidavit" of the Turngrens' expert witness, Robert di Grazia, fails to raise any genuine issue of material fact concerning the detectives' malicious or reckless conduct since it is based on conclusory allegations without the required detailing of the specific facts underlying his opinion. CR 56(e). See Peterick v. State, 22 Wn. App. 163, 181, 589 P.2d 250 (1977). Moreover, even if the expert's conclusory allegations are taken as true, the "affidavit" raises no more than an inference of negligent investigation and that is not sufficient to preclude summary judgment in a case of this kind. See Clipse v. Gillis, supra at 694-96.

4 The Turngrens' reliance on an agency theory as a means of vicariously imputing liability to the police for the wrongful actions of its unpaid voluntary informants is misplaced. The police are not, as a practical matter, the insurers of the veracity of their informants' information. Absent intentionally malicious conduct or reckless conduct on the part of law enforcement officers, an action for damages cannot be sustained. See Ladd v. Miles, supra; Clipse v. Gillis, supra at 696.

As the United States Supreme Court has observed in an analogous situation, there exists

a broad field where the magistrate is the sole protection of a citizen's Fourth Amendment rights, namely, in instances where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination.

. . . Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.

(Italics ours.) Franks v. Delaware, 438 U.S. 154, 170-71, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978).