Molina v. Spanos

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 18 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

RONALD R. MOLINA,

Plaintiff-Appellant,

v. No. 98-4119
(D.C. No. 96-CV-23-K)
MIKE SPANOS, ROBERT J. (D. Utah)
LUCKING, PERRY ROSE, KEN VAN
WAGONER, and WASATCH
COUNTY SHERIFF’S
DEPARTMENT,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

This action arose out of a drug investigation of plaintiff Robert R. Molina

and Clifford Molina, plaintiff’s brother. The investigation led to their subsequent

arrest, a search of plaintiff’s property, the seizure of plaintiff’s home, the

initiation of criminal drug charges, and the filing of a forfeiture proceeding.

Plaintiff appeals from the district court’s entry of summary judgment in favor of

defendants Mike Spanos, the sheriff of Wasatch County, Utah; Robert J. Lucking,

Perry Rose, and Ken Van Wagoner, law enforcement officers working with the

Wasatch Area Drug Enforcement Network (a multi-jurisdictional drug task force

known as WADEN); the Wasatch County Sheriff’s Department; and John Does 1

through 10, on his federal claims under 42 U.S.C. §§ 1982 and 1983 that

defendants violated his constitutional rights and his state claims of false arrest,

false imprisonment, intentional infliction of emotional distress, defamation,

conversion, and violation of property rights under the Utah Constitution. He also

appeals the district court’s orders refusing to compel production of requested

discovery, excluding certain evidence, and denying his motion for partial

summary judgment. We affirm in part, reverse in part, and remand for further

proceedings.

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I. BACKGROUND

In 1990, plaintiff, who is of Hispanic descent, moved to Heber City, Utah,

from Miami, Florida. As a self-employed certified public accountant, writer, and

real estate finance expert, he conducted his business from his home. Shortly after

relocating, plaintiff began to suspect that his house was under police surveillance.

In 1992, when plaintiff was visiting in another state, his teenaged son

called the police for assistance in removing two acquaintances from the house.

Upon responding to the call, defendant Rose, a Heber City police officer, arrested

the son, along with the other two individuals, for use and possession of a

controlled substance. Subsequently, police obtained a search warrant and

returned to the Molina home to search it. The son eventually pleaded guilty to

attempted use of a controlled substance. Somewhat later, plaintiff’s brother

Clifford Molina, who “has a serious drug problem,” Appellant’s App., Vol. 1

at 460 (plaintiff’s deposition), moved into plaintiff’s home.

A. The Investigation

In 1994, the owner of a bar in Heber City expressed to defendant Lucking,

a deputy with the Wasatch County sheriff’s office and the WADEN coordinator,

and defendant Van Wagoner, also a deputy sheriff and the former coordinator, her

suspicions that plaintiff and Clifford Molina were involved in drug activity. She

indicated that plaintiff “flashes money” and “buys girls gifts” and, possibly, that

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she had observed Clifford Molina participate in a drug transaction. Addendum to

Brief of Appellees Spanos, Lucking, Van Wagoner and Wasatch County Sheriff’s

Dept. (Addendum), Tab 2 (Lucking deposition at 64). Based on this information,

Lucking launched a WADEN investigation. He placed Barbara McClure, a

confidential informant employed by WADEN, in the bar as a part-time employee

and instructed her to become acquainted with the Molinas.

McClure followed instructions and became friendly with plaintiff and his

brother. Soon, however, McClure came to believe that Clifford, not plaintiff,

“was doing the buying and the selling [of drugs]. . . . and was the dealer.”

Appellant’s App., Vol. 1 at 309 (McClure deposition). When she told Lucking of

her conclusion, he began to distrust her, thinking that she was getting

“[p]ersonally involved” and “too close to Ron Molina.” Id. at 368 (Lucking

deposition). He added another confidential informant, James McDaniel, to the

investigation.

Rose was assigned to monitor the informants’ activities. Before planned

buys, Rose and other WADEN team members generally conducted searches of the

informants and wired them with transmission devices. During the transactions,

WADEN maintained visual and audio contact. Afterwards, they searched and

debriefed the informants. To document their observations, Rose and Lucking

wrote incident reports. See Addendum at tabs 10-12.

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 The informants involved the Molinas in the purchase of cocaine on three

occasions, August 26 and 27, and September 4, 1994. In all instances, McClure

provided WADEN money for an eighth of an ounce of cocaine, or an “eight ball,”

id. , and McDaniel drove Clifford Molina, in Clifford’s car, to Salt Lake City to

make a purchase. Upon their return, McClure obtained WADEN’s share of the

drugs. Plaintiff’s alleged involvement, however, varied. WADEN reports state

that, in connection with the August 26 buy, plaintiff delivered the cocaine to

McClure’s home. The next day, he allegedly participated in dividing up the

purchased cocaine in his home, discussed its characteristics, and ingested some.

Although McClure attempted to give the money for WADEN’s share to plaintiff,

he insisted that she pay his brother instead. For the final transaction, plaintiff

allegedly watched silently while his brother, McClure, and McDaniel exchanged

the drugs.

B. The arrest and search

On September 6, 1994, Lucking decided to execute a warrant for the arrest

of plaintiff and Clifford Molina. Magistrate Fern Spanos, who is married to

defendant Spanos, issued the warrant. Lucking gathered teams of officers to

serve the warrants, and also conscripted defendant Van Wagoner, a neighbor of

the Molinas, to “keep an eye on [the Molinas’] home to let us know if they were

indeed there.” Addendum, tab 2 (Lucking deposition at 202). When McClure

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learned that the arrest warrants had been issued, she continued to dispute

Lucking’s conclusion that plaintiff was involved in drug transactions.

That afternoon, the arresting officers knocked, announced their presence,

and entered plaintiff’s residence, causing considerable damage to the door. They

found plaintiff in his upstairs bedroom and Clifford Molina in the shower. After

both were handcuffed and taken out to the front yard, Lucking and Rose

conducted protective sweeps of the residence.

The officers then turned their attention to plaintiff's property. Lucking

directed that plaintiff's car, which was parked on the street, be impounded and

held for safekeeping while plaintiff was under arrest. The residence was secured

until a warrant to search the residence could be obtained.

Rose signed the affidavit in support of the warrant request. In it, he cited

to the transactions of August 26, 27 and September 4, and added that during his

protective sweep he saw “a beer can formed into a pipe of the type normally used

to smoke < rock’ cocaine or marijuana” and “a white power residue on a glass top

covering a night stand.” Id. at tab 14. Based on this affidavit, Magistrate Spanos

issued a search warrant. The home was searched, and although items which could

be considered drug paraphernalia were confiscated, no drugs were found.

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 Plaintiff was charged with distribution of a controlled substance, arranging

the distribution of a controlled substance, and conspiring to distribute a controlled

substance. Clifford Molina was also charged with drug-related offenses.

Plaintiff was released on bail on the evening of his arrest. Defendants

Lucking and Rose did not permit him to return to his home. Instead, they took

him there to gather clothing and other necessities, then drove him to a local hotel.

Although he retrieved his car from the impound lot the next morning, he did not

have access to his home. Allegedly with the approval of defendant Spanos,

WADEN task force members had arranged to change the locks on the doors,

change the utilities, and post a sign stating that the property had been seized by

order of the sheriff.

On September 8, the county attorney filed a lis pendens and civil forfeiture

complaint under Utah state law, asserting that Molina’s real property had been

“used to store, distribute and/or manufacture a controlled substance.” Id. at tab

16. Later, the attorney determined that the complaint was invalid because the

value of drugs in the WADEN transactions did not meet the statutorily-required

amount of $1,000. Accordingly, he moved to dismiss the forfeiture action.

Possession of the home and its contents was returned to plaintiff on September

26.

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 The criminal charges against plaintiff remained pending. During plea

bargaining, the county offered to dismiss the charges in return for an agreement

that he would not sue and that he would immediately move out of Utah. Although

plaintiff did not accept the agreement, all charges against both plaintiff and his

brother were eventually dismissed. Plaintiff then filed this civil rights lawsuit.

II. DISCUSSION

We review the district court’s grant of summary judgment de novo,

applying the same legal standard the district court used pursuant to Fed. R. Civ. P.

56(c). See Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995).

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Rule 56(c). “When applying this

standard, we examine the factual record and reasonable inferences therefrom in

the light most favorable to the party opposing summary judgment.” Wolf , 50 F.3d

at 796 (quotation omitted). “[W]e can consider only admissible evidence in

reviewing an order granting summary judgment.” Gross v. Burgraff Constr. Co. ,

53 F.3d 1531, 1541) (10th Cir. 1995).

With regard to plaintiff's civil rights claims, qualified immunity protects

public officials from individual liability for damages unless the officials violated

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“clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). To pierce

this shield, “the plaintiff must demonstrate that the defendant’s actions violated a

constitutional or statutory right” and that the rights allegedly violated “were

clearly established at the time of the conduct at issue.” Albright v. Rodriguez ,

51 F.3d 1531, 1534 (10th Cir. 1995).

Applying the above rules to the matter before us, we discuss each of

plaintiff’s seventeen appellate issues. Because these issues are overlapping,

we group them into seven categories.

A. Rulings on admissibility of evidence, discovery, and
deferral of summary judgment under F.R.C.P. 56(f)

As an initial matter, plaintiff asserts that the district court’s procedural

rulings undermined the presentation of his underlying theory that, in line with

their custom of forcing minorities from their community, defendants conspired to

make him move out of state because he is Hispanic. The first of these rulings

relates to the admissibility of a transcript of a telephone call with informant

McClure. The telephone call was initiated on August 14, 1995 by plaintiff’s then-

attorney. Plaintiff participated in the interview and taped it. According to

plaintiff, McClure’s statements demonstrate that WADEN's actions were taken to

further this conspiracy. Specifically, he asserts that the transcript reveals that

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Lucking went forward with the investigation, arrest, search, and seizure despite

an awareness that plaintiff was not involved with drugs. See Appellant’s Br. at 7.

At her deposition, taken approximately a year later, McClure maintained

that plaintiff was unfairly targeted for a WADEN investigation. She testified,

however, that plaintiff had lent her money so that his brother could go to Salt

Lake City to pick up cocaine, had dropped a packet of cocaine off at her house,

and had used cocaine in her presence four or five times. On cross-examination,

she stated that in the transcribed telephone call she was truthful “as far as [she]

knew,” but did not recall saying that she was “not aware of any instance where

[she] had witnessed Ron Molina doing illegal drugs.” Appellant’s App, Vol. 2 at

887.

Plaintiff submitted the transcript of the telephone call as an exhibit to his

memorandum in response to defendants’ motion for summary judgment. The

district court refused to consider it.

A “nonmoving party need not produce evidence in a form that would be

admissible at trial, but the content or substance of the evidence must be

admissible.” Thomas v. IBM , 48 F.3d 478, 485 (10th Cir.1995) (quotations

omitted). Rule 56(e) of the Federal Rules of Civil Procedure lists appropriate

documents for supporting an opposition to a motion for summary judgment:

affidavits made on personal knowledge, depositions, and answers to

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interrogatories. Hearsay testimony, such as “a third party’s description of a

witness’ supposed testimony is not suitable grist for the summary judgment mill.”

To successfully oppose a motion for summary judgment, “generalized,

unsubstantiated, non-personal” testimony is insufficient. Id. (quotations omitted).

Unquestionably, McClure’s deposition testimony, which severely undercuts

the impact of the transcript, is in a form admissible on summary judgment. The

unsigned, unauthenticated transcript is not. Moreover, even if we looked beyond

form and evaluated content, we would still conclude that the transcript is

inadmissible. The primary subject of discussion is McClure’s recitation of

Lucking’s testimony and her conclusory evaluation of his motives.

Plaintiff also appeals the district court’s determination that it would not

consider a newspaper article submitted by plaintiff. The article constitutes

inadmissible hearsay. The district court's evidentiary rulings were not erroneous.

In a similar vein, plaintiff argues that the district court’s unfavorable orders

on his discovery motions and request for deferral of a summary judgment ruling

under Rule 56(f) were erroneous. He fails, however, to furnish legal argument

demonstrating that the district court abused its discretion in making the

questioned rulings. See Burks v. Oklahoma Publ’g Co. , 81 F.3d 975, 981

(10th Cir. 1996) (discovery rulings reviewed under abuse of discretion standard);

Jensen v. Redevelopment Agency of Sandy City , 998 F.2d 1550, 1553-54

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(10th Cir. 1993) (Rule 56(f) denial reviewed for abuse of discretion). We note

that discovery was conducted in this case for more than a year and a half.

Notwithstanding plaintiff’s generalized claim of a cover-up, he was afforded

adequate time and opportunity to unearth the specific facts necessary to oppose

summary judgment.

B. Legality of 1992 search

As both a separate claim and background support for the conspiracy claim,

plaintiff asserts that on November 15, 1992, defendants Rose and Van Wagoner

searched his home without a warrant, or with a facially-invalid warrant. The

record demonstrates, however, that a warrant was issued and that it authorized a

search of the home. See Appellant’s App., Vol. 2 at 808; see also id. , Vol. 1 at 37

(verified complaint alleging that a search warrant was issued before the search).

Summary judgment was the proper disposition of this claim.

C. Constitutionality of arrest

Plaintiff makes several assertions of error concerning entry of summary

judgment on the claim that the September 6, 1994, arrest violated his

constitutional rights. He argues that the arrest warrant was invalid because:

(1) there were misstatements and omissions in the affidavit supporting the

warrant; (2) the magistrate issuing the warrant was not neutral; and (3) the

warrant was not obtained until after the arrest. Two related claims are that he is

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entitled to a jury determination on whether there was probable cause to arrest and

that his claim for a violation of the “knock and announce” rule.

Plaintiff’s first argument implicates the long-established principle that “the

Fourth Amendment’s warrant requirement is violated when < a false statement

knowingly and intentionally, or with reckless disregard for the truth, was included

by the affiant in the warrant affidavit’ if the false statement is necessary to a

finding of probable cause.” Clanton v. Cooper , 129 F.3d 1147, 1154 (10th Cir.

1997) (quoting Franks v. Delaware , 438 U.S. 154, 155-56 (1978); see also Kaul v.

Stephan , 83 F.3d 1208, 1213 n.4 (10th Cir. 1996) (“A state officer is not

automatically shielded from Section 1983 liability merely because a judicial

officer approves a warrant.”) (citing Malley v. Briggs , 475 U.S. 335, 344-46

(1986)).

For several reasons, however, this principle has no application to the

alleged misstatements and omissions at issue here. “Probable cause for an arrest

warrant is established by demonstrating a substantial probability that a crime has

been committed and that a specific individual committed the crime.” Taylor v.

Meachum , 82 F.3d 1556, 1562 (10th Cir. 1996) (quoting Wolford v. Lasater ,

78 F.3d 484, 489 (10th Cir. 1996)). “Probable cause need not be based on actual

guilt.” Breidenbach v. Bolish , 126 F.3d 1288, 1293 (10th Cir. 1997). “While the

existence of probable cause is often a jury question, summary judgment is

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appropriate when there is no room for a difference of opinion concerning the facts

or the reasonable inferences to be drawn from them.” Qian v. Kautz , 168 F.3d

949, 953 (7th Cir. 1999). Plaintiff has not raised a jury question on the existence

of probable cause for his arrest.

It is unquestioned that the core statements about plaintiff’s drug activities

were accurate reflections of information supplied by McClure and McDaniel, the

confidential informants. These statements were consistent with the officers’ own

observations during the WADEN investigation. Even if the informants’

statements could be proven false, “it is the deliberate falsity or reckless disregard

< of the affiant, not of any nongovernmental informant’ that is unconstitutional.”

Clanton , 129 F.3d at 1154 (quoting Franks , 438 U.S. at 171). In addition, there

was no need to include a statement that the two informants were unreliable. All

concerns as to the reliability of McClure worked to the favor of plaintiff, not

WADEN. Furthermore, unfavorable information on McDaniel’s background, later

unearthed by plaintiff, was irrelevant to defendants’ good faith reliance at the

time the affidavit was drafted. 1

In a related vein, plaintiff argues that Magistrate Spanos, who issued the

arrest warrant, was married to the sheriff and thus was not the detached and

1
Other alleged errors, such as discrepancies concerning the amount of money
exchanging hands and description of the electronic equipment, are so minor that
they do not merit discussion.

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neutral magistrate required by the Fourth Amendment. Plaintiff, however,

provides no evidence demonstrating that Magistrate Spanos was unable to make a

detached probable cause determination. We decline to formulate a per se rule that

an individual in a personal relationship with a law enforcement official cannot be

considered a neutral magistrate.

Plaintiff also asserts that the arrest in his home was invalid because no

warrant was issued until after he was taken into custody. The evidence in the

record belies this assertion. At most, plaintiff’s claim is that the first time he saw

a warrant, he was already in custody. There is no requirement that an arrestee

must be shown the warrant before the arrest or even that the arresting officers

have the warrant in hand. See Fed. R. Crim. P. 4(d)(3) (“The officer need not

have the warrant at the time of the arrest but upon request shall show the warrant

to the defendant as soon as possible.”).

Finally, plaintiff alleges that arresting officers announced their presence,

then immediately broke down his door, in violation of the “knock and announce”

rule. “[I]n some circumstances an officer’s unannounced entry into a home might

be unreasonable under the Fourth Amendment.” Wilson v. Arkansas , 514 U.S.

927, 934 (1995). We have recently explained that,

[a]lthough certain circumstances may justify entry without knocking
and announcing, the Fourth Amendment includes a general
presumption that police officers executing a search warrant for a
residence must announce their presence and authority before

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 entering. If the occupants do not admit the officers within a
reasonable period of time after they have knocked and announced
their presence and purpose, the officers may be deemed to be
constructively refused admittance, and they may then enter by force.

United States v. Jenkins , 175 F.3d 1208, 1213 (10th Cir. 1999) (citations and

quotations omitted).

Wilson was decided in 1995; plaintiff’s arrest occurred in 1994. Although

it is now established that the “knock and announce” requirement is incorporated

into the Fourth Amendment, it was not so clearly established in the law of this

circuit in 1994. See United States v. Cervera , No. 93-8062, 1994 WL 123332

(10th Cir. Apr. 12, 1994) (declining to decide whether the Fourth Amendment

mandated state officers’ compliance with the “knock and announce” requirement

of 18 U.S.C. § 3109); United States v. Moland , 996 F.2d 259, 260 (10th Cir.

1993) (same); see also Aponte Matos v. Toledo Davila , 135 F.3d 182, 191

(1st Cir. 1998) (“[T]he requirement that officials identify themselves to the

subject of a search or seizure, absent exigent circumstances, was not clearly of

constitutional dimension until the Supreme Court decided Wilson in 1995.”)

(quotation omitted). Thus, any failure to wait a reasonable period after knocking

did not violate a clearly-established law in effect at the time, and defendants are

entitled to qualified immunity on plaintiff’s “knock and announce” theory.

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 In short, plaintiff has provided no evidence in support of a legally

cognizable civil rights claim concerning events surrounding his arrest. We affirm

the grant of summary judgment on his arrest claims.

D. Constitutionality of post-arrest searches

Plaintiff also claims that his constitutional rights were violated when

(1) Lucking and Rose conducted five to twenty-minute protective sweeps of his

residence while he was handcuffed and standing in his front yard; (2) Lucking

obtained a warrant to search his home based on misstatements and material

omissions; and (3) WADEN members searched his automobile without a warrant.

“A ‘protective sweep’ is a quick and limited search of premises, incident to

an arrest and conducted to protect the safety of police officers or others.”

Maryland v. Buie , 494 U.S. 325, 327 (1990). Such a search is limited to a

“cursory visual inspection of those places in which a person might be hiding.” Id.

It is constitutional if the officers had “a reasonable belief based on specific and

articulable facts which, taken together with the rational inferences from those

facts, reasonably warranted the officer in believing that the area swept harbored

an individual posing a danger to the officer or others.” Id. (internal quotations

omitted).

Here, plaintiff asserts that the sweeps were unnecessary, because he and his

brother were already outside of the home. He also argues that the sweeps

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exceeded the time necessary to dispel a suspicion of danger. We find no merit to

these contentions. Other individuals besides plaintiff and his brother could have

been present in the home. Additionally, the protective sweeps were not

unreasonably long in light of the size of plaintiff's residence.

Concerning the search warrant, plaintiff again asserts that the supporting

affidavit contained misstatements and omissions, and that the warrant itself was

signed by a non-neutral magistrate. In concluding that the arrest warrant was

valid, we have already rejected much of this argument. We also reject his

additional attacks on the search warrant, including his objections to the truth of

statements that the arresting officers saw, in plain view, drug paraphernalia and a

white powder residue on a glass-topped nightstand.

We recognize that plaintiff has raised a disputed issue of fact concerning

the validity of these statements. We also note that plaintiff's version of the facts

is corroborated by the record, in that no drug residue was found in the home and

no white powder taken into evidence. The disputed issue, however, is not a

material one.

If an affidavit supporting a warrant contains false statements, “ < the

existence of probable cause is determined by setting aside the false information

and reviewing the remaining contents of the affidavit.’” Taylor , 82 F.3d at 1562

(quoting Wolford , 78 F.3d at 409). Plaintiff is incorrect in believing that,

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“because nothing was found, there could not have been probable cause to

search the houses unless that probable cause was based on false information. . . .

[P]robable cause to obtain a search warrant is based on a showing of a reasonable

degree of suspicion that the suspected items will be found--not an actual showing

that such items will be found.” Breidenbach , 126 F.3d at 1293.

The bedrock of this case is that the WADEN investigation culminated in

informants’ telling the task force that they had participated in drug transactions in

plaintiff's home. Although plaintiff attacks the truth of informants' statements,

the record clearly shows that they were made to WADEN team members. These

statements, along with other background information about the investigation, were

sufficient to establish probable cause for the search of plaintiff’s residence.

The final search issue concerns the inventory search of plaintiff’s

automobile, made in connection with its impoundment. “An inventory search is a

well-defined exception to the warrant requirement of the Fourth Amendment,

designed to effect three purposes: protection of the owner’s property, protection

of the police against claims of lost or stolen property, and protection of the police

from potential danger.” United States v. Haro-Salcedo , 107 F.3d 769, 772

(10th Cir. 1997) (citations omitted). To be reasonable under the Fourth

Amendment, an inventory search must be conducted according to standardized

procedures. See id.

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 Plaintiff does not contest defendants’ assertion that they had an oral policy

relating to the impoundment and inventory search of an arrested subject’s

property. Instead, he would have us interpret the Haro-Salcedo requirement of a

standardized procedure to mean a written policy. We decline to do so. After

reviewing the entire record, we agree with the district court that defendants were

entitled to summary judgment on issues relating to the searches of plaintiff’s

property.

E. Constitutionality of the seizure of plaintiff’s residence and
personal property left in the residence

Plaintiff also asserts that the seizure of his home and its contents was

illegal. A seizure of property “occurs when ‘there is some meaningful

interference with an individual’s possessory interests in that property.’” Soldal

v. Cook County , 506 U.S. 56, 61 (1992) (quoting United States v. Jacobsen ,

466 U.S. 109, 113 (1984)). “ < When officers have reason to believe that criminal

evidence may be destroyed, or removed, before a warrant can be obtained, the

circumstances are considered sufficiently critical to permit officers to enter a

private residence in order to secure the evidence while a warrant is sought.’”

United States v. Wicks , 995 F.2d 964, 970 (10th Cir. 1993) (quoting United States

v. Chavez , 812 F.2d 1295, 1299 (10th Cir. 1987) (further quotation omitted)).

However, a “[f]ailure timely to return seized material which is without

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evidentiary value and which is not subject to forfeiture may state a constitutional

or statutory claim.” Davis v. Gracey , 111 F.3d 1472, 1477 (10th Cir. 1997).

Accordingly, defendants made a satisfactory showing on summary judgment

that they did not violate the Fourth Amendment when they kept plaintiff out of his

house until they could conduct a lawful search. WADEN task force members,

however, interfered with plaintiff's access to his home for an additional three

weeks. There are material issues of fact concerning defendants' liability for their

exercise of continued possession and control over plaintiff's home.

The fact that a forfeiture action had been filed in state court does not justify

the extended seizure of the home. In United States v. James Daniel Good Real

Property , 510 U.S. 43, 62 (1993), the Supreme Court held that “[u]nless exigent

circumstances are present, the Due Process Clause requires the Government to

afford notice and a meaningful opportunity to be heard before seizing real

property subject to civil forfeiture.” The Court reasoned that the immobility

of real property ordinarily eliminates grounds for dispensing with preseizure

proceedings. Id. at 57. Because Good was decided in 1993, it was

clearly-established law by the time plaintiff’s home was seized.

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 Defendants have not come forward with any evidence demonstrating

exigent circumstances for the precipitous seizure of plaintiff’s home. 2
As a

result, this claim should have survived summary judgment.

F. Cognizability of claims alleging racial conspiracy, failure to
train officers, and custom and practice of violating rights of
minorities

Another category of plaintiff’s claims relates to a racial conspiracy under

42 U.S.C. § 1985, a failure to train officers in the protection of civil rights, and

a custom and practice of violating the constitutional rights of minorities. These

speculative and conclusory claims are insufficient to establish a constitutional

violation.

G. Cognizability of claims under Utah state law

As a final matter, we review the district court’s entry of summary judgment

on plaintiff’s state law claims of false arrest and false imprisonment, intentional

infliction of emotional distress, defamation, conversion, and violation of property

rights under the Utah Constitution. We find no error in the district court’s

determination that these causes of action are barred under Utah’s Governmental

Immunity Act. See Utah Code Ann. §§ 63-30-1 to -38.

2
It is immaterial that the county attorney, who is not a defendant in this
action, filed the forfeiture action on behalf of the State. Plaintiff has shown that
it was the defendants who prohibited plaintiff's access to his home and its
contents.

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III . CONCLUSION

We AFFIRM in part, REVERSE in part, and REMAND. The district

court’s entry of summary judgment on all claims is affirmed except on those

related to the extended seizure of his residence. The case is remanded to the

district court for further proceedings consistent with this order and judgment.

Plaintiff’s motions to supplement the record and file reply briefs are granted; his

motion to strike or correct brief and appendix of appellees Spanos, Lucking, Van

Wagoner and the Wasatch County Sheriff’s Department is denied; the motion of

appellee Perry Rose to file supplemental appendix is granted and his motion to

strike is denied. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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