PACIFIC MARINE CENTER, INC. v. SCOTT SILVA

FILED
NOT FOR PUBLICATION JAN 21 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PACIFIC MARINE CENTER, INC.; No. 12-15783
SONA VARTANIAN,
D.C. No. 1:09-cv-01409-LJO-JLT
Plaintiffs - Appellants,

v. MEMORANDUM*

SCOTT SILVA; TOM WILSON; CHRIS
WAGNER; DAN AYALA; KEVIN
BUCHANAN; GIDEON COYLE;
GEORGE IMIRIAN; DAN HORSFORD;
EDWARD ESSEGIAN,

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California, Fresno
Lawrence J. O’Neill, District Judge, Presiding

Submitted January 15, 2014 **
San Francisco, California

Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
 Pacific Marine Center, Inc. and Sona Vartanian appeal from the district

court’s grant of partial summary judgment in favor of California Department of

Motor Vehicles investigators Scott Silva, Tom Wilson, Dan Ayala, Kevin

Buchanan, Dan Horsford, Gideon Coyle, and Christopher Wagner; Fresno city

police officer George Imirian; and Madera County deputy sheriff Edward Essegian

(collectively “officers”). They also appeal from the court’s subsequent entry of

judgment in favor of all officers following a jury verdict in Essegian’s favor on the

sole claim left open by the court’s partial summary judgment order. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

A

Appellants contend the district court erred in granting partial summary

judgment by concluding that Investigator Silva did not procure the search warrant

through judicial deception. To prevail on a claim of judicial deception, Appellants

“must show that the defendant deliberately or recklessly made false statements or

omissions that were material to the finding of probable cause.” Ewing v. City of

Stockton, 588 F.3d 1218, 1223 (9th Cir. 2009) (internal quotation marks omitted).

Investigator Silva’s omission of his informants’ hostile relationship with Pacific

Marine was not material, because their statements contained sufficient independent

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indicia of reliability. Lombardi v. City of El Cajon, 117 F.3d 1117, 1126–27 (9th

Cir. 1997).

B

The search warrant alleges that Investigator Silva had probable cause to

believe that he would find property that was “Stolen or Embezzled.” Appellants

assert that the facts set forth in the probable-cause affidavit did not support an

essential element of the crime of embezzlement. But “a warrant can be held to be

valid when an affidavit provides probable cause that a law other than the statute

specified in the affidavit has been violated.” United States v. Nguyen, 673 F.3d

1259, 1264 n.2 (9th Cir. 2012) (emphasis added); see also United States v. Meek,

366 F.3d 705, 713 (9th Cir. 2004) (“Because the affidavit established probable

cause as to a violation of California law and the items sought under the warrant

corresponded to that probable cause determination, the statutory variance in the

affidavit is not fatal to the warrant’s validity.” (emphasis added)). The information

contained in Investigator Silva’s probable-cause affidavit was more than sufficient

for the issuing magistrate “to make a practical, common-sense decision whether,

given all the circumstances set forth in the affidavit before him, . . . there [was] a

fair probability that contraband or evidence of a crime”—be it embezzlement or

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some lesser theft crime—would be found at the Pacific Marine corporate offices.

Illinois v. Gates, 462 U.S. 213, 238 (1983).

II

Appellants further maintain that the district court erred in holding that the

officers did not violate clearly established law in destroying property, detaining

Vartanian, and displaying unreasonable force in executing the search warrant. In

applying the qualified immunity doctrine, we need not determine whether a Fourth

Amendment violation occurred if an officer did not violate clearly established law.

Cameron v. Craig, 713 F.3d 1012, 1021 (9th Cir. 2013) (citing Pearson v.

Callahan, 555 U.S. 223, 236 (2009)).

A

Appellants argue the district court erred in granting summary judgment on

their claim for unreasonable destruction of property because the evidence presented

a “clear-cut question of fact” whether the officers’ actions were unreasonably

destructive. The officers here could reasonably have understood that clearly

established Ninth Circuit law permitted their relatively minor destruction of

property in executing the search warrant. See United States v. Becker, 929 F.2d

442, 446–47 (9th Cir. 1991) (holding reasonable officers’ use of a jackhammer to

search underneath a concrete slab on suspects’ property where “the agents had

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ample reason to believe that the concrete slab was being utilized to hide the very

evidence they were legally on the premises to find”); United States v. Offices

Known as 50 State Distributing Co., 708 F.2d 1371, 1374, 1376 (9th Cir. 1983)

(holding destruction of property not unreasonable where officers seized vanloads

of materials, broke down a door after several unsuccessful attempts to locate a key,

and damaged an automatic filing machine while executing a justifiedly broad

search warrant for business records revealing fraudulent business activity). The

district court did not err in granting the officers qualified immunity on this claim.

See Stanton v. Sims, 134 S. Ct. 3, 4 (2013) (“The doctrine of qualified immunity

protects 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.” (internal quotation marks

omitted)).

B

Appellants similarly contend that the reasonableness of Vartanian’s

detention was an issue of fact the court should have submitted to a jury. We

disagree. In light of the existing law in 2009, a reasonable officer would not have

known it was unlawful to deny a business detainee’s single bathroom request or

two requests for water over the course of four hours. See Ganwich v. Knapp, 319

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F.3d 1115, 1120 (9th Cir. 2003) (holding that officers’ detention of a business’s

employees in a waiting room for as long as four hours and forty-five minutes while

they executed a search warrant was “lawful under the Fourth Amendment,” where

doing so “ensured that employees were on the premises to assist officers in case

they needed (for example) a door or cabinet unlocked”). The district court

therefore did not err as a matter of law.

C

Appellants maintain that the officers displayed unreasonable force by

arriving at Pacific Marine in SWAT gear and carrying shotguns or rifles. “The

‘reasonableness’ of a particular use of force must be judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Graham v. Connor, 490 U.S. 386, 396 (1989). Appellants offered no evidence that

any of the officers were aware of the actual risk (or lack thereof) they faced in

executing the search warrant at Pacific Marine. In view of the officers’ uncertainty

about the environment they would encounter in executing the search warrant, the

officers’ protective attire was objectively no greater than necessary under the

circumstances. See Tekle v. United States, 511 F.3d 839, 844–45 (9th Cir. 2006)

(“In determining whether the force used was reasonable, we must balance the

nature and quality of the intrusion on the individual’s Fourth Amendment interests

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against the countervailing governmental interests at stake.” (internal quotation

marks omitted)).

III

Appellants appear to contend that the district court’s grant of summary

judgment on their claims for unreasonable detention, destruction of property, and

display of force deprived them of the right to introduce evidence of those claims at

trial to establish that Officer Essegian subjected Vartanian to excessive force

during the search. The record shows that Appellants never made an offer of proof

before the district court at trial regarding the admissibility of such evidence, aside

from their attempt to “reraise” their unreasonable-detention claim just before trial.

At trial, however, Appellants successfully elicited testimony, without objection,

regarding Vartanian’s detention, the officers’ attire, and the damaged surveillance

system. To the extent Appellants contend the jury should have heard additional

evidence of these theories of defense, they forfeited that issue on appeal by failing

to make an offer of proof at trial and raise this issue in their opening brief on

appeal. See Cruz v. Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012) (“We

review only issues which are argued specifically and distinctly in a party’s opening

brief.” (internal quotation marks omitted)); Tennison v. Circus Circus Enters., Inc.,

244 F.3d 684, 689 (9th Cir. 2001) (“Because Plaintiffs failed to make an offer of

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proof, or otherwise attempt to introduce [evidence at issue], Plaintiffs cannot

challenge the exclusion of that evidence on appeal.”).

AFFIRMED.

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