FILED
NOT FOR PUBLICATION
DEC 29 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMMY LYNN CAMERON, an No. 16-55421
individual,
D.C. No.
Plaintiff-Appellant, 2:15-cv-00774-RGK-JPR
v.
MEMORANDUM*
LAUREN BROWN, an individual and
official capacity; COUNTY OF LOS
ANGELES, a public entity,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted December 5, 2017
Pasadena, California
Before: TASHIMA and BERZON, Circuit Judges, and KENNELLY,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
Tammy Cameron brought this § 1983 action against Detective Lauren
Brown and the County of Los Angeles, alleging that there was no probable cause
to support the issuance of a warrant for her arrest. We conclude that a reasonable
jury could so find, and accordingly reverse the grant of summary judgment to the
defendants.
Under the “totality of the circumstances” in this case, Illinois v. Gates, 462
U.S. 213, 230–31 (1983), a reasonable jury could find that there was no probable
cause to obtain an arrest warrant for Tammy Cameron.
First, Tammy Cameron did not match the physical description of the female
perpetrator provided by the witness and included in the initial incident report. The
incident report described the female perpetrator as 5’1” and weighing 135 pounds.
According to the database on which Detective Brown obtained Cameron’s photo,
Cameron was 5’7” and weighed 110 pounds. A reasonable jury could find that a
height difference of six inches for a woman is, at a minimum, a “red flag” that
“should have led officers to question whether the person described” in the incident
report was Cameron. Garcia v. Cty. of Riverside, 817 F.3d 635, 641–42 (9th Cir.),
cert. denied sub nom. Baca v. Garcia, 137 S. Ct. 344 (2016).
Second, a jury could disbelieve Detective Brown’s long-after-the-fact
representation that a witness provided him with the name Cameron. The name
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“Cameron” does not appear anywhere in either the initial incident report or the
supplemental report prepared by Detective Brown. Nor is there any other evidence
dating from the time of the investigation that any of the witnesses provided the
name “Cameron” to Detective Brown. The only evidence that Detective Brown
was given the name “Cameron” by a witness comes from Detective Brown’s own
deposition testimony and declaration during the course of this litigation, which
began years after the underlying events. Detective Brown was unable to say which
witness provided the name “Cameron,” when, or whether he or she did so by phone
or in person.
Third, a reasonable jury could find that the witness’ photo identification
does not independently support probable cause. A photo identification cannot
support probable cause if it is “so impermissibly suggestive as to give rise to a
substantial likelihood of misidentification” and lacks “sufficient indicia of
reliability” otherwise to support the integrity of that identification. Grant v. City of
Long Beach, 315 F.3d 1081, 1086 (9th Cir. 2002), opinion amended on denial of
reh’g, 334 F.3d 795 (9th Cir. 2003).
A reasonable jury could find that the six-pack photo array here, in which the
name “tame cameron” appeared beneath Cameron’s photograph and not beneath
any other photograph in the line-up, was impermissibly suggestive. Even though
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the witness understood the perpetrator’s name to be “Tammy Garrison” not “tame
cameron,” he could have seen the phonetically similar first name and somewhat
similar last name and drawn an implicit connection between Cameron’s
photograph and the perpetrator he was asked to identify. Cf. People v. Carlos, 138
Cal. App. 4th 907, 910–12 (2006).
The suggestiveness of the format of the six-pack array was exacerbated by
the way the identification was performed. After the witness said he was unsure
whether any of the women in the array was the female perpetrator, Detective
Brown told him to “[d]o [his] best”—a directive that the witness interpreted,
reasonably, to mean pick the person in the array most similar to the perpetrator. A
reasonable jury could find that together, these two aspects of the photo
identification process render it impermissibly suggestive, notwithstanding the
signed witness advisement form. Further, in light of the suggestiveness of the
photo identification, a reasonable jury could find that there are not sufficient
indicia of reliability otherwise to support the integrity of the identification.
“Indicia of reliability include: 1) the opportunity to view the criminal at the time of
the crime; 2) the degree of attention paid to the criminal; 3) the accuracy of the
prior descriptions of the criminal; 4) the level of certainty demonstrated at the time
of confrontation; and 5) . . . the length of time between the crime and the
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confrontation.” Grant, 315 F.3d at 1087. While the witness had ample time to
view the female perpetrator at the time of the crime and paid attention to her
appearance, approximately ten months had passed between the crime and the photo
identification, see id. at 1088, and, critically, the witness exhibited a low level of
certainty during the identification. Also, the description given by the witness
before he was shown the array did not match Cameron’s appearance as to height,
an immutable feature. For these reasons, a reasonable jury could find that the
photo identification does not support probable cause.
Having determined that the district court erred in granting summary
judgment for the defendants on the question of probable cause, we remand for the
district court to address the issues of qualified immunity and municipal liability
under Monell v. Department of Social Services of City of New York, 436 U.S. 658
(1978).
REVERSED AND REMANDED.
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