Plaintiffs also point to the first definition of any in Webster's Collegiate Dictionary: one or some indiscriminately of whatever kind, one or another taken at random . As the district court noted in denying Linderman's Motion for Reconsideration, a directive that the search teams seize only a sampling of gang indicia from each location would have complied with the literal terms of the search warrant and would not have required Linderman to substitute his own discretion for the terms of the warrant itself., Second, even assuming Linderman's construction of any as all, while the search warrant gave Linderman the power to instruct the officers to seize items with Hells Angels indicia, it did not mandate that he order them to seize everything complying with the literal terms of the warrant. at 979 (quoting Dalia v. United States, 441 U.S. 238, 258, 99 S.Ct. The entire thing was a show for media. He ultimately determined that Steve Tausan, one of the nightclub's bouncers and a member of the San Jose Charter of the Hells Angels Motorcycle Club (SJHA), committed the crime.2 Linderman also suspected other SJHA members and associates of concealing evidence of the murder.3, The District Attorney's Office charged Tausan with the murder of Kevin Sullivan. Linderman was not the deputy district attorney who would try the case and was not in a position to judge whether the trial court would admit into evidence photographs of the objects instead of the objects themselves or whether, in this era of digitally altered images, defense counsel would ridicule a photograph as tainted by police technicians, should the original object not be produced.

The SJPOs planned either to isolate or to shoot the dogs, so they would not threaten the safety of the primary entry team. The prosecution sought this evidence from the plaintiffs, who were neither codefendants with Tausan in the murder trial nor charged with any crime. When the SJPOs reached Robert Vieira, they located a firearm propped up against the bedroom window. It is difficult to imagine that a case could arise where an officer executing a valid search warrant would not at some stage in the matter be required in the very nature of things to exercise his judgment as to what thing or things or person or persons were to be seized under the warrant. Strauss v. Stynchcombe, 224 Ga. 859, 165 S.E.2d 302, 307 (1968). At the Souza residence, the SJPOs used a ram to break down the front door before they even dealt with the dogs; at the Vieira residence, the residents were awakened not by the barking of their dogs, but rather by the four shotgun blasts discharged at the dogs. First, the word any in the search warrants did not mean all. The relevant text of each search warrant itself draws a distinction between any and all. While the search warrants authorized the search for any indicia evidence, at another point the search warrants authorized the search for any and all yards, garages for the following property. (emphasis added). All the evidence seized or damaged fell within the scope of the warrant. 1873, 18 L.Ed.2d 1040 (1967) (Stewart, J., concurring). This unnecessarily destructive behavior, beyond that necessary to execute [the] warrant[s] effectively, violates the Fourth Amendment. Liston, 120 F.3d at 979. We also hold that at the time Linderman directed the officers to seize truckloads of Hells Angels indicia in support of a sentencing enhancement, even if it meant removing a refrigerator door, it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier, 533 U.S. at 202, 121 S.Ct. In other words, while there may be no published cases holding similar policies unconstitutional, this may be due more to the obviousness of the illegality than the novelty of the legal issue. Id. 2151. Second, if so, was that right clearly established? Linderman's argument depends on reading the word any in the search warrant as equivalent to all-and the concomitant assumption that he not only had the power to seize all indicia evidence, but could not lawfully exercise his discretion to seize anything less. It is not the police officer's role to determine how to limit the scope of the warrant. 5.In a ruling not at issue in this appeal, the district court ruled that the affidavit supporting the search warrant was insufficient to establish probable cause to search for the videotape or meeting notes. Authorities with search warrants forcibly entered the Hells Angels Dago clubhouse in El Cajon early Wednesday. He emerged from the house at the second floor balcony just as the officers gained entry through the gate. 1682, 60 L.Ed.2d 177 (1979)). Look for California gulls, American avocets, brown pelicans, snowy egrets, Bataan Death March victim lives to tell story. ; Carney, Sgt. However, I did not give Officer Nieves any specific instructions as to how to deal with any dogs. (emphasis added). There need not be prior authority dealing with this precise factual situation in order to deny Linderman qualified immunity for his actions. In their third amended complaint, the plaintiffs alleged that the searches violated the Fourth Amendment. The law does not impose such a burden on police officers. But once they knew the house belonged to the Listons, their search was no longer justified. Id.2. This is because [t]he standard of reasonableness embodied in the Fourth Amendment demands that the showing of justification match the degree of intrusion. Berger v. New York, 388 U.S. 41, 70, 87 S.Ct. 1.The SJPOs are defendants Sergeant Decena, Sergeant Carney, Officer Messier, Officer Nieves, Officer Manion, Officer Newman, and Officer Knox. Officers used explosives to blow off the heavily fortified front door, said El Cajon police Lt. Randy Soulard. The second set of warrants again authorized the seizure of a copy of the security videotape, and notes or records of a Hells Angels meeting held on the Friday following the murder of Sullivan.5 Judge Ball also authorized a search for evidence that showed indicia of Hells Angels affiliation, including any evidence of membership in, affiliation with, activity of, or identity of, any gang, including but not limited to, any reference to Hells Angels. The purpose of this provision in the warrants was to obtain evidence supporting a street gang sentencing enhancement against Tausan under California Penal Code 186.22 because, allegedly, the murder had been committed in furtherance of the criminal conduct of the Hells Angels gang.. Finally, this case is not the kind where the officer was reacting to a sudden unexpected situation, where the officers were confronted with exigent circumstances. 513, 154 L.Ed.2d 394 (2002) (quoting Deorle v. Rutherford, 272 F.3d 1272, 1274-75 (9th Cir.2001)). If that did not work, he planned to assess the situation and engage the dogs, to ensure the safety of the entry team. An officer broke through the front door using a ram. The unreasonable nature of Linderman's instructions to seize all evidence of indicia is highlighted by the destruction of property caused by the seizures. It was the officers' own method of entry that compromised their ability to effectuate a quiet entry. See, e.g., Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. The officers had no specific plan for isolating the dogs. Despite the truckloads of evidence seized during the searches, the prosecution only presented a few seized photographs at Tausan's trial. We view the evidence in the light most favorable to the plaintiffs. Ganwich v. Knapp, 319 F.3d 1115, 1119 n. 5 (9th Cir.2003). Curated stories, fun places to hang out and top events. ; Carney, Sgt. M.E.R.G.E. Knowing what I know of biker gang types from my personal experiences with these societal bullies, strangely, I feel no outrage. The size of their 'club house' tells it all. 2.The hypothetical posed by the district court that it would have been unreasonable for an officer to cut a column off a house because it had the owners' initials on it is also inapposite. Fearing that they might take too many items, several officers called Linderman to clarify what items should be seized. First, taken in the light most favorable to the party asserting the injury, do the facts alleged show the officers' conduct violated a constitutional right? Saucier, 533 U.S. at 201, 121 S.Ct. The first dog went down, but the second dog did not retreat. In Liston, the police were sued for destruction of property and unreasonably detaining the homeowners when they executed a search warrant for a previous owner, James Rocky Hill, upon the new owners of a home, the Listons. The Supreme Court has set forth a two-pronged inquiry to resolve all qualified immunity claims. It looked at me, gave a low growl, and started advancing toward me. They wanted to punish, deter and intimidate Mr. Eunice who leased his properties to the Hells Angels to use as their clubhouse," reads a portion of the original complaint. Marron stands for the proposition that an officer has no discretion to seize items not listed on a warrant meeting the Fourth Amendment's particularity requirement. No one was at the small white and red compound and no arrests were made. 1.The majority opinion minimizes the importance of the searches by stating: The property here in dispute was not evidence of a crime; rather, the justification for seizing the indicia evidence was to support a sentencing enhancement against Steve Tausan. Majority Op. I would reverse the district court's order denying Deputy Sheriff Linderman qualified immunity. The officers were searching for evidence of a murder, possibly gang related. See Deorle, 272 F.3d at 1279. A seizure becomes unlawful when it is more intrusive than necessary. Ganwich, 319 F.3d at 1122 (quoting Florida v. Royer, 460 U.S. 491, 504, 103 S.Ct. Thus, to comply with the Fourth Amendment, the seizure-in this case, shooting and death-of the Vieiras' and Souza's dogs must have been reasonable under the circumstances. By now blood had drained from him and was running down the driveway. Although I might well have agreed that this warrant was overly-broad on its face, that issue is not before us. 12.Indeed, several officers executing the search questioned whether the extensive seizure was necessary, indicating their understanding that the warrant did not require seizure of all material coming within its terms. The witness stated that he believed that a copy of the tape had been given to the Hells Angels. Id. At 7:00 a.m. on the morning of January 21, 1998, teams of law enforcement officers simultaneously served the search warrants at residences of members of the Hells Angels in various parts of Santa Clara and Santa Cruz counties. Here, the precise language of the warrants is important. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. The emotional attachment to a family's dog is not comparable to a possessory interest in furniture. At the Vieira residence, Officer Nieves was in charge of handling the dogs. On the day of the January 1998 search, separate search teams from the Santa Clara Sheriff's Office conducted the searches and seizures once the various premises were secured. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Exigent circumstances did not exist at either residence, as the SJPOs had a week to consider the options and tactics available for an encounter with the dogs. The system is not your friend right now, if it ever was to being with. Although the seizure of the indicia evidence was for the limited purpose of establishing a sentencing enhancement against Tausan, Linderman nonetheless instructed every officer who called him to seize anything with Hells Angels indicia.10 In so doing Linderman asserts that he was simply complying with the terms of the search warrants and that the officers executed the warrants in a lawful manner. The owner of the nightclub called Tausan and told him what happened. On the day of the search, the primary entry team entered through the front door of the main house7 while the secondary team unsuccessfully tried to cut the lock on the side gate with bolt cutters. The plan for entering the property was to cut the lock on the outer fence, approach the house, give knock-notice, then enter and secure the house. The district court denied the officers' motion for summary judgment based on qualified immunity. Id. The warrants read that the police were to look for evidence of the commission of felonies, to wit: violations of (California Penal Code Section 187 (murder), Penal Code Section 211 (robbery)), and (evidence of active participation in the felonious conduct of a criminal street gang as defined in Penal Code 186.22). (capitalization altered). Although both teams were safely inside the house, the backyard remained unsecured and the dogs remained on the loose. Then, according to Officer Manion. The evidence produced by plaintiffs included evidence that the police had broken through their front door with a battering ram, thrown Mr. Liston to the floor injuring him, pointed a gun at Mr. Liston's face even though he was not resisting the police, and held the entire family for several minutes while the police went through the house trashing it. While searching plaintiff James Souza's property, the officers shot and killed one of Souza's dogs. Id. 2151. [T]he right that the official is alleged to have violated must have been clearly established in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. 17.The police officers' opportunity to plan ahead distinguishes this case from the recent Supreme Court decision, Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. Gee the last time I saw any HA flying their colors they were of an age just short of ancient. The defendants moved for summary judgment on the ground that they are entitled to qualified immunity. All of the above considerations support the conclusion that the officers violated the plaintiffs' Fourth Amendment rights by unnecessarily shooting the dogs. (Officer Nieves carried a shotgun specifically because of the possible presence of dogs.) Police investigative officers recovered meeting minutes after several exhaustive searches, but failed to find the alleged videotape.4, In January 1998, the District Attorney's Office sought a second set of search warrants for nine residences and the SJHA clubhouse. That's what it was being seized for. In the Tausan murder trial, the prosecution sought to prove the applicability of a three-year sentencing enhancement by showing that Tausan was a member of an ongoing organization, association, or group of three or more persons having a common sign or symbol. Cal.Penal Code 186.22. The plaintiffs here also challenged the warrants. Although the search warrants were obtained in connection with a murder investigation, none of the plaintiffs were potential suspects. They seized the plaintiffs' Harley-Davidson motorcycles, most worth over $20,000, because they contained indicia of Hells Angels affiliation. 1865. In this case, however, the SJPOs were given a week to plan the entry.

Clearly, a reasonable officer would have understood that his actions violated an established right of the plaintiffs. The Fourth Amendment allows officers to use a certain amount of force because they are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving Graham, 490 U.S. at 397, 109 S.Ct. The Listons also produced evidence that the police did all this after the Listons informed the police that they had just purchased the house from Hill, the subject of the warrant; the police saw a For Sale sign in the yard which said the house had Sold; and, the police found the escrow papers for the sale from Hill to the Listons and Mr. Liston's driver's license. A reasonable officer should have known that to create a plan to enter the perimeter of a person's property, knowing all the while about the presence of dogs on the property, without considering a method for subduing the dogs besides killing them, would violate the Fourth Amendment. As the court recognized in Liston, it was not clear the destruction of property by itself violated a constitutional right. Nonetheless, the officers failed to develop a realistic plan for incapacitating the dogs other than shooting them. Accordingly, I dissent from the denial of qualified immunity to Linderman. In sum, in these circumstances, a reasonable officer would have known that the killing of the dogs at the Souza and Viera residences was unlawful. Officer Newman supervised the search of Souza's residence. Officer Nieves shot at the second dog twice, critically wounding it, causing it and the third dog to retreat.9 Although he had already shot the first dog at point blank range, Officer Nieves testified that the dog was apparently trying to get back up [a]nd in an effort to ensure that he wasn't going to attack or be a problem for the team, Officer Nieves fired a fourth shot at the dog's head, killing it. 13.At Lori Viera's deposition, she testified that she wrote in her journal, I had to stand again not far from by [sic] poor dog (Sam). See Miller v. Clark County, 340 F.3d 959, 968 n. 13 (9th Cir.2003). Dave Rice - hundreds of thousands of dollars of taxpayer money was wasted on this "raid." The evidence must be viewed in the light most favorable to the non-movant. v. County of Humboldt, 276 F.3d 1125, 1131 (9th Cir. Judge Ball issued several search warrants on January 20, 1998. The issue here is whether the evidence, taken in the light most favorable to the plaintiffs, establishes that Officer Linderman's instructions to seize all evidence covered by the search warrant violated an established constitutional right of the plaintiffs, and whether it would be clear to a reasonable officer that his conduct was unlawful in the situation Linderman confronted. Thus, we affirm the district court's denial of the SJPOs' motion for qualified immunity. denied, County of Humboldt v. Burton, 537 U.S. 1000, 123 S.Ct. 9.The second dog was later taken by an Animal Control Officer and euthanized due to extensive injury. If they did, he planned to poke them through the fence with his shotgun to try and scare them. It is the function of the independent magistrate to assure that there is probable cause to issue the warrant and that the warrant is drafted narrowly and the things to be seized are described with particularity.

Qualified immunity serves to shield 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. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. Although the SJPOs were armed with pepper spray, no officer attempted to use the spray to subdue the dogs.8 Instead, Officer Nieves attempted to scare the dogs away by yelling at them and pushing one of the dogs back with the barrel of his shotgun. At the Santa Clara Sheriff's Office briefing on the morning of the operation, Sergeant Carney was told that the Vieira property, in particular, was guarded by three large dogs. Id. Judge Curiel, however, denied Eunice's trespass and nuisance claims, noting that officials had a "high risk search warrant" and that there were eight search warrants and eleven arrest warrants associated with the raid. Learn more about FindLaws newsletters, including our terms of use and privacy policy. 536 U.S. at 741, 122 S.Ct. He gave the same answer to Deputy Bacon when he called about a motorcycle at the residence of Fillmore Cross and to Deputy Greer when he called about a motorcycle at the residence of James and Marnie Arnett. Eunice holds that the officers were simply "showing off" for television news cameras when they used what his lawyers deemed excessive force during the entry. Until the officers learned that they were in the wrong house, the officers could have reasonably believed, under these precedents, that the way they conducted the search was lawful. Saucier, 533 U.S. at 202, 121 S.Ct. The SJPOs' contention that shooting the dogs was necessary to preserve stealth is equally unpersuasive. The January search warrants included a provision for the seizure of property with indicia of Hells Angels affiliation, to assist the prosecution in obtaining evidence to support a gang sentencing enhancement against Tausan under Penal Code 186.22. Agents were searching the clubhouse looking for evidence and expected to be at the site for about two hours, Roderick said. The officers had no plan to use non-lethal methods of incapacitation; nor did they have a specific plan for isolating the dogs or any intention of giving Souza the opportunity to isolate his Rottweiler himself. We have recognized that dogs are more than just a personal effect. He obtained Souza's arrest record, which revealed that Souza had been arrested for weapons and narcotics charges. The email address cannot be subscribed. We also hold that the shooting of the dogs at the Vieira and Souza residences was an unreasonable seizure, and an unreasonable execution of the search warrants, in violation of the Fourth Amendment. The officers, in effect, left themselves without any option but to kill the dogs in the event they-quite predictably-attempted to guard the home from invasion.. Officer Nieves, who was assigned the duty of protecting the entry team, planned to deal with the dogs in the following manner: First, he hoped that the dogs would not appear at the gate. This action arises out of the simultaneous execution of search warrants at the residences of members of the Hells Angels, and at the Hells Angels clubhouse on January 21, 1998. While executing one of the search warrants at the residence of plaintiffs Lori and Robert Vieira, the officers shot two of the Vieiras' dogs. However, it is not necessary that the alleged acts have been previously held unconstitutional, as long as the unlawfulness [of defendant's actions] was apparent in light of pre-existing law. Sorrels, 290 F.3d at 970 (citation omitted) (alteration in original). As the district court concluded, however, there was insufficient probable cause to believe that either the videotape or the meeting minutes would be found at the residences.