Wu v. County of Orange

Filed 11/28/05 Wu v. County of Orange CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

FEILONG WU et al., Plaintiffs and Appellants, v. COUNTY OF ORANGE et al., Defendants and Respondents.

G033915 (Super. Ct. No. 779098) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Richard O. Frazee, Judge. Affirmed.

Lakeshore Law Center and Jeffrey Wilens for Plaintiffs and Appellants.

Franscell, Strickland, Roberts & Lawrence, David D. Lawrence and Jorje Chica for Defendants and Respondents.

* * *

In 1996, two-year-old Cecil Turner (C.T.) was found murdered in a ravine close to the apartment where he lived with his mother, Edith Wu, his stepfather, Feilong Wu, and his sister, Brittany. During the investigation, the Wus were detained and questioned, their home was searched pursuant to a warrant, and some of their personal papers were seized. Media statements identified them as suspects. The Wus were never arrested or charged, and the case remains unsolved.

The Wus filed a complaint against the County and four officers of the Sheriff’s Department: Ron Wilderson, Mark Simon, Roger Neumeister, and David Guest. The complaint alleged causes of action for violations of the Wus’ Fourth Amendment rights, defamation, and conversion. The defendants brought a total of ten motions for summary adjudication; the trial court granted nine of them. Then, finding there was nothing left of the plaintiffs’ case, the trial court dismissed the complaint.

On appeal, the Wus challenge the rulings on five of the summary adjudication motions brought by the four individual defendants, claiming there are triable issues of fact regarding probable cause to issue the search warrant and the officers’ entitlement to qualified immunity under federal law and judicial immunity under Government Code section 821.6. The Wus also contend even if the summary adjudication motions were correctly granted, the trial court erroneously dismissed the complaint because one of their theories of liability, unlawful detention, was not resolved by any of the summary adjudication motions. We affirm.

FACTS

The Wus’ sixth amended complaint contains the following allegations: During the early morning hours of August 12, 1996, C.T. disappeared from the Wus’ apartment while Edith was sleeping and Feilong was jogging. Edith discovered his absence and called 911. An extensive search of the area revealed nothing. C.T.’s body was found in the afternoon of August 13, in a nearby ravine; the cause of death was determined to be asphyxiation.

At 7:00 a.m. on August 13, a witness gave a statement to a sheriff’s deputy stating she had seen a young man carrying a child into a store near the Wus’ apartment at about 10 a.m. the previous day. She remembered the incident because the man acted rudely. When she saw the newspaper accounts of C.T.’s disappearance and his photograph on the morning of August 13, she realized C.T. was the child she had seen in the store. Another witness contacted sheriff’s deputies at the scene shortly after C.T.’s body was found on August 13. She told them she had seen “a suspicious person” leaving an area of the creek bed at approximately 2:30 p.m. that afternoon, 30 to 45 minutes before the discovery of the body.

The defendants took the Wus to a sheriff’s substation for questioning early in the morning of August 13. They were kept there for more than fifteen hours, without food or water, and were “subjected . . . to extreme psychological pressure in an effort to get them to ‘confess’ to being responsible for the disappearance of their son.” C.T.’s sister, three-year-old Brittany, was placed into protective custody. Around midnight, Edith was released to a hotel, but Feilong was transported to another station, where he was photographed naked and fingerprinted. He was ultimately taken to the hotel. Four days later, the Wus were intimidated into submitting to further questioning. Each of them was interrogated for three hours, “in a loud and intimidating manner,” under pressure to admit that Feilong killed C.T.

In the evening of August 13, while the Wus were being questioned at the station, the defendants submitted an affidavit to a magistrate in support of a warrant to search the Wus’ apartment. The defendants omitted the witnesses’ statements, which tended to exculpate the Wus. The complaint alleged “the search warrant was not based on probable cause and no reasonable officer would have believed the search warrant affidavit contained indicia of probable cause.” While executing the search warrant, the defendants seized and retained Feilong’s immigration papers, which he had assembled for submission to the INS to obtain a work permit, a green card, and, ultimately, U.S. citizenship. Feilong, a world champion diver, had been offered a position as a coach on the Mission Viejo Nadadores diving team, but needed a work permit and a green card first. He hoped to become a citizen in time to compete for the United States in the 2000 Olympics.

The Wus alleged the defendants deprived them of their rights to be free from unreasonable search and seizure and deprivation of liberty without due process of law under the Fourth and Fourteenth Amendments of the United States Constitution, and pleaded a violation of their civil rights under section 1983 of title 42 of the United States Code and section 52.1 of the California Civil Code. They also pleaded conversion based on the seizure and retention of Feilong’s immigration documents.

The complaint further alleged that between August 1996 and February 1997, defendants made comments reported in newspapers “implying that plaintiffs were guilty of killing their son . . . .” Additionally, one of the defendants spoke to an attorney while off-duty, revealing that he was investigating C.T.’s death and stating that “the Sheriff’s Department knew that the Wu’s were guilty even though there was not enough evidence to arrest them.” In January 2000, the County published information about the crime on its website, falsely stating that C.T. was dead by 2:30 a.m. on Monday, August 12, which “implie[d] within itself a[s] well as in the context of other information published by defendants, that the Wu’s are guilty of killing C.T.” The Wus pleaded a cause of action for defamation, alleging the statements were false and “libelous or slanderous per se in that they accuse plaintiffs of murdering their son.”

The defendants moved for summary adjudication of certain issues. In the first motion, they claimed the search warrant was supported by probable cause and was valid on its face. In the second motion, they claimed the causes of action for civil rights violations under federal and state law were barred by the qualified immunity doctrine. In the third motion, they claimed the facts omitted from the affidavit were not material and, even if they had been included, there would still have been probable cause to issue the warrant. The fourth and fifth motions claimed the defamation and conversion causes of action were barred as to all defendants by the governmental immunity in Government Code section 821.6.

There was probable cause to support the warrant.

The Wus first claim the search warrant lacked probable cause to search their apartment and seize Feilong’s immigration papers. They contend there were no facts in the affidavit suggesting that evidence of criminal activity would be found in the apartment and there was no justification for seizing the immigration papers.

Investigator David Guess prepared the affidavit in support of the search warrant and read it over the telephone to Judge Robert Fitzgerald at 9:30 p.m. on August 13, 1996. The affidavit sought authority to search the apartment for “the victims’ [sic] clothing, photographs . . . , measurements and sketches of the exterior and interior of the residence, blood and other bodily fluids, fiber samples and standards, human secretions . . . ; fingerprints, footprints and shoeprints, glass fragments and standards; tool marks and impressions; metal fragments; liquid, powder, or other drugs or narcotics that may tend to cause death; any written material pertaining to the homicide of the victim such as diaries or other personal writings, any items of personal identification tending to show the relationship of the suspect to the victim; any items of personal property tending to establish the identity of persons who have dominion, care, custody, and control over the place to be searched such as utility bills, telephone bills, addressed mail, personal identification, keys, purchase receipts, sales receipts, photographs, telephone address books and daily planners.”

Guess’s statement of probable cause was as follows: He was called to assist with the investigation of C.T.’s death earlier that afternoon. At the apartment, he was told that two other investigators had been briefed by Investigator Griffin, who told them C.T. was discovered missing the previous day, at approximately 8 a.m. A report by Deputy Nester, which Guess read to Judge Fitzgerald, indicated Nester arrived at the apartment at approximately 9 a.m. and spoke to Feilong. Feilong said he awakened about 8:00 a.m. and got dressed to go jogging. C.T. was awake, “so he took him out of his crib and turned on some cartoons for him before he left . . . , shortly after 0800 hours. Edith was at the apartment, but not yet awake when he left. Feilong said he did not lock the apartment door, but believed he pulled the door shut before he left. He said the door may not have shut completely, which allowed [C.T.] to pull open the door he believed. . . .”

Edith told Deputy Nester that Brittany came into her room at about 8:30 and told her C.T. was not in his crib. “Wu said she got up and checked the crib and other rooms of the apartment, but could not locate her son anywhere. She got dressed and immediately started looking for [him] in the area near the stairs to the jogging path to the adjacent to the apartment complex, [which] has a creek that flows next to the path. The creek and the jogging path are in a ravine area below the apartment complex. . . . Edith . . . said she searched the area leaving the stairs and also the jogging path because she believed C.T. may have tried to follow Feilong on his jog. Edith said that [C.T.] cannot walk downstairs, but he knows how to scoot downstairs . . . .” When Feilong returned from his jog, Edith confirmed that C.T. had not gone with him, and they called 911.

Deputies searched the area all that day and the next, on foot and with bloodhounds and helicopters, until approximately 3:30 p.m. on August 13, when “[t]he body of a small child was found in the creek . . . . [T]he body was nude, lying on its side and covered with debris. The area of the child’s head was surrounded by four or five softball sized rocks, one of which was partially on the child’s head.” One of the investigators saw a “gardener’s type cotton glove, with what appeared to be blood on it, on a path leading from the victim’s residence to the body.”

Guess stated he had personally reviewed the rental agreement for the apartment and the Wus were the renters. He felt there was probable cause to believe that the items sought would be found in the apartment. The judge asked if there were “any . . . car ports, . . . garages, automobiles, . . . or lockers that are either adjacent to or associated with, . . . [the] apartment . . . .?” Guess replied there was possibly a car port which, he believed, had already been searched and found to be empty. The judge indicated he was satisfied that there was probable cause to issue the warrant and did so.

Probable cause to search exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983) 42 U.S. 213, 233.) The issuing magistrate need only make “‘a practical, common-sense decision . . . given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information . . . .” (Ibid.) Probable cause describes reasons to be suspicious, not a prima facie case of guilt. (People v. Thuss (2003) 107 Cal.App.4th 221, 236.) When we review the magistrate’s determination, we defer to his finding of probable cause unless the warrant is invalid as a matter of law. (Id. at p. 235.)

The facts stated in the affidavit supported the inference that evidence of C.T.’s disappearance and death might be found in the apartment. Fielong said he believed he pulled the door shut, from which one could conclude that C.T. did not leave the apartment on his own, but was taken. Despite an extensive and exhaustive search, C.T.’s body was not found for more than 30 hours after his disappearance. When it was found, the body was close to the apartment, nude, and covered in debris with “softball sized” rocks around and on the head. A bloody glove was found on the path to the ravine. A reasonable magistrate could conclude these facts pointed to C.T.’s abduction and murder and the subsequent disposal of his body in the ravine. Had C.T. merely wandered off, it is likely that his body would have been found sooner. Because the body was found so close to the apartment, these facts give rise to a strong suspicion that evidence of the crime would be found in the apartment.

The Wus complain that the affidavit does not discuss the cause of death and the facts could just as easily support the inference that C.T. died of natural causes. While this may be so, it is not our role to weigh the conflicting inferences that could reasonably have been made by the magistrate. Unless the affidavit is insufficient as a matter of law, we will uphold it. (People v. Thuss, supra, 107 Cal.App.4th at p. 235.)

The Wus next argue the affidavit left out facts known to Guess that would have negated the inferences supporting probable cause. They claim the statement of the witness who saw a baby being carried into a store around 10 a.m. the day after C.T.’s disappearance compels the conclusion that the Wus could not have killed the child; from the time they reported C.T.’s disappearance until late the next day, they were with police officers. Likewise, they claim the statement of the witness who saw a “suspicious person” emerging from the ravine shortly before the body was found was also exculpatory.

Under Franks v. Delaware (1978) 438 U.S. 154, a defendant can challenge a search warrant by showing the affiant deliberately or recklessly made material factual omissions, provided that the omitted facts negate probable cause when added to the affidavit. (People v. Gibson (2001) 90 Cal.App.4th 371, 381-382; People v. Sousa (1993) 18 Cal.App.4th 549, 562-563.) Here, the omitted witnesses’ statements perhaps tend to exculpate the Wus as suspects, but they do not undermine the finding of probable cause to search the apartment for evidence of C.T.’s murder. In fact, the witnesses’ statements would have bolstered the reasonable conclusion that C.T.’s death was due to an abduction and murder.

The Wus contend even if the affidavit supported probable cause to search the apartment, it did not support the seizure of Feilong’s immigration papers because they were outside the scope of the warrant’s authorization. The warrant authorized officers to search for “any items of personal property tending to establish the identity of persons who have dominion, care, custody, and control over the place to be searched such as utility bills, telephone bills, addressed mail, personal identification, keys, purchase receipts, sales receipts, photographs, telephone address books and daily planners.” The Wus maintain the immigration papers were not necessary to establish Feilong’s dominion and control over the premises because Guess had already reviewed the rental agreement and determined he was one of the lessees.

The Fourth Amendment protects persons from “general warrants and . . . indiscriminate rummaging among personal belongings” by the police. (United States v. Whitten (9th Cir. 1983) 706 F.2d 1000, 1009.) But warrants authorizing the seizure of items that establish the identity of persons occupying the premises have been upheld when justified by the nature of the crime. (People v. Nicolaus (1991) 54 Cal.3d 551, 575; United States v. Whitten, supra, 706 F.2d at p. 1009.) Here, it was necessary for the police to establish who lived in the apartment or had access to it because that is where C.T. was last seen alive. Although the Wus had told defendants they were the occupants and they were on the rental agreement, it was reasonable to search for independent evidence of actual occupancy by the Wus and others. Completed immigration forms could be considered comparable to other important personal papers, such as a birth certificate, passport, or social security card. The presence of a person’s important papers in a residence tends to show actual occupancy.

Defendants are entitled to qualified immunity for executing the search warrant.

The Wus contend the trial court erred in finding that the doctrine of qualified immunity shields the individual defendants from liability on both the federal and state civil rights claims. We disagree.

Qualified immunity protects a police officer from an action for damages for unlawful search and seizure (42 U.S.C. § 1983) “unless the officer has violated a ‘clearly established’ constitutional right.” (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 840.) A constitutional right is clearly established if “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” (Saucier v. Katz (2001) 533 U.S. 194, 202.) The standard for the officer’s behavior is objective reasonableness. (Malley v. Briggs (1986) 475 U.S. 335, 344.)

Here, we have determined that probable cause supports the issuance of the warrant and the seizure of the immigration papers. Even if probable cause did not exist to support the seizure of the immigration papers, however, the defendants would still be entitled to qualified immunity if their conduct was reasonable under the circumstances. “The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts. . . . If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.” (Saucier v. Katz, supra, 533 U.S. at p. 205.)

It was reasonable for the defendants to seize Feilong’s immigration papers as evidence of his dominion and control of the premises. The investigation into C.T.’s disappearance and death was ongoing, and Feilong was a suspect. At that stage in the proceedings, the defendants were entitled to gather evidence independent from the Wus’ statement and the rental agreement.

The Wus argue the qualified immunity doctrine does not apply to their cause of action under Civil Code section 52.1, which alleges that the defendants, “by means of threats, intimidation and coercion,” interfered with their rights under the Fourth and Fourteenth Amendments . . . .” Defendants rejoin with the argument that Civil Code section 52.1 does not apply to this search and seizure because the alleged lack of probable cause did not involve threats, coercion or intimidation.

“[I]n pursuing relief for . . . constitutional violations under section 52.1, plaintiffs need not allege that defendants acted with discriminatory animus or intent, so long as those acts were accompanied by the requisite threats, intimidation, or coercion.” (Venegas v. County of Los Angeles, supra, 32 Cal.4th at p. 843.) In Venegas, the Supreme Court held that plaintiffs stated a cause of action under Civil Code section 52.1 by alleging an unconstitutional search and seizure. But the facts alleged in Venegas are different than those present here. The Venegas plaintiff refused to authorize a search of his home but consented to the officers accompanying his wife to their home to obtain his identification. When they got to the home, the officers intimidated the wife into signing an authorization to search, and evidence incriminating to the plaintiff was found. The court observed, “[P]laintiffs in this case have alleged unconstitutional search and seizure violations extending far beyond ordinary tort claims.” (Ibid.) No such threats or coercion are present in the case before us.

Even if the Wus’ cause of action under Civil Code section 52.1 applies to the search and seizure, it must fail because we have found the warrant was supported by probable cause and/or the defendants acted reasonably so as to be protected by qualified immunity. If the defendants acted reasonably, there can be no liability under Civil Code section 52.1. (See Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 350; Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1274-1275.)

The Wus waived their objection to dismissal of the remaining issues.

The Wus argue even if the orders granting summary adjudication are upheld, the judgment of dismissal is erroneous because their theory of liability based on unlawful detention was not adjudicated. Although they agreed to the dismissal on the record, they argue this was merely “one offhanded remark.”

The record reveals the parties and the court discussed the effect of granting the motions for summary adjudication. The Wus’ counsel said, “I don’t think it makes any sense to take depositions until the court has ruled on all these summary judgment [sic] motions. It’s reasonable to wait until after those rulings . . . .” The court asked, “We don’t have a trial?” Both counsel agreed there would be no trial if the motions were granted. Defendants’ counsel stated, “If the court grants all of the motions then they’re done, there is no need for a depo or trial.” The Wus’ counsel said, “Right.” When the judgment was prepared, it specifically referred to that portion of the reporter’s transcript as the basis for the dismissal of the case. The Wus filed no objection to the proposed judgment; neither did they move for relief under Code of Civil Procedure section 473. Thus, any error was invited by the Wus, and they are not now entitled to relief. (Ferris v. Gatke Corp. (2003) 107 Cal.App.4th 1211, 1225-1226, fn. 7.)

The defendants are immune from liability for defamation under

Government Code section 821.6

The Wus contend the trial court erred in finding that the defendants were immune from liability for defamation under Government Code section 821.6. We find the trial court was correct.

Government Code section 821.6 provides, “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” This absolute immunity applies to the investigation of crimes “[b]ecause investigation is ‘an essential step’ toward the institution of formal proceedings . . . .” (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1210.)

The Wus argue the remarks made by the defendants to the media, on the internet, and during an off-duty chat were not part of the investigation and should not be protected by the statutory immunity. But case law is to the contrary. In Cappuccio v. Harmon (1989) 208 Cal.App.3d 1496, an investigative officer of the Department of Fish and Game was found immune under Government Code section 821.6 for publicly announcing false information about dishonest buyers of fish after they had been found guilty. The court determined the public statements were part of the prosecution process, notwithstanding they were made after judgment. “As the investigating officer and an important witness for the prosecution, Harmon was expected and entitled to make public statements. Such statements . . . were part of the prosecution process.” (Id. at p. 1500.) In Citizens Capital Corporation v. Spohn (1982) 133 Cal.App.3d 887, the court held public officials were immune under Government Code section 821.6 from defamation charges brought by a collection agency based on “widespread newspaper publicity charging them with improper conduct in operating their collection services . . . .” (Id. at p. 888.) License revocation proceedings were later brought against the agency. The court found the publicity was part of the prosecution process because it “merely reported the results of official investigations of plaintiffs and the revocation action based on those investigations.” (Id. at p. 889.)

The Wus contend these cases are distinguishable because proceedings against the defamation plaintiffs were instituted, whereas the Wus were never arrested or charged with C.T.’s murder. But an officer’s immunity does not require that he accurately predict the future. “‘When the duty to investigate crime and to institute criminal proceedings is lodged with any public officer, it is for the best interests of the community as a whole that he be protected from harassment in the performance of that duty. The efficient functioning of our system of law enforcement is dependent largely upon the investigation of crime and the accusation of offenders by properly trained officers. A breakdown of this system at the investigative or accusatory level would wreak untold harm.’” (Cappuccio, Inc. v. Harmon, supra, 208 Cal.App.3d at p. 1501.)

DISPOSITION

The judgment of dismissal is affirmed. Respondents are entitled to costs on appeal.

SILLS, P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.

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