CA9: Omission that target of search was in prison six months at time of the probable cause was material

Plaintiffs stated a claim for a Franks violation in a § 1983 for a search warrant for their house for evidence that Bravo Jr. was involved in a drive-by shooting. At the time of the shooting and raid on the house, Bravo Jr. had been in prison for six months. Bravo v. City of Santa Maria, 665 F.3d 1076 (9th Cir. 2011):

Hope Bravo and Javier Bravo Sr., along with their minor granddaughter E.B. (collectively “the Bravos”), appeal the adverse summary judgment grant in their 42 U.S.C. § 1983 action arising out of the nighttime SWAT team search of their home for weapons suspected of being used in a drive-by shooting and stored in the Bravo home by their son, Javier Bravo Jr. (“Javier Jr.”). The Bravos allege their Fourth Amendment rights were violated by the issuance and execution of a search warrant whose application failed to disclose that Javier Jr. was at that time, and for over six months had been, incarcerated in the California prison system and therefore not only was not present in the Bravo home, but moreover could not have been involved in the shooting or the storage of weapons used in it. Because the Bravos presented sufficient evidence establishing a genuine issue as to whether Santa Maria Police Department (“SMPD”) Detective Louis Tanore’s (“Tanore”) omission of this material fact was intentional or reckless, as opposed to merely negligent, we reverse the summary judgment grant in his favor and remand.

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Nonetheless, we must ask whether probable cause remains once the affidavit is supplemented with the challenged omission—here, Javier Jr.’s two-year sentence imposed over six months prior to the incident occasioning the search warrant, and his consequent incarceration in state prison at the time of the drive-by shooting and of the warrant’s execution. We conclude that the corrected affidavit could not establish probable cause for the search and especially does not meet the heightened standard of justification required for nighttime SWAT service.

The district court reasoned that Javier Jr.’s presence was immaterial because the warrant was not for his arrest but only to search for evidence related to the April 21 shooting. This fact, however, was highly material to the search, which authorized the seizure of evidence relating to the April 21 shooting. Javier Jr.’s custody status meant not only that he would not be present in the Bravo residence at the time of the search, but that he could not have been involved in the shooting or in concealing the evidence. Tanore had no evidence that Mr. and Mrs. Bravo or E.B. were involved in the April 21 shooting or that during a period in which Javier Jr. was not residing in their home they would have assisted Tangas gang members in concealing evidence, and specifically in concealing evidence from the shooting. The generalized statements in the affidavit that it is “common” for families of gang members to assist other members of the gang are insufficient to support probable cause to search the Bravos’ home. See United States v. Rodgers, 656 F.3d 1023, 1030-31 (9th Cir. 2011) (stating that “an assumption that most sixteen-year-old passengers have identification does not lead to probable cause to search every car carrying a teenager absent some individualized suspicion regarding the teenager, the vehicle in question, and the crime at issue”); United States v. McCarty, 648 F.3d 820, 830 (9th Cir. 2011) (“Searches and seizures are ordinarily unreasonable in the absence of individualized suspicion of wrongdoing, and the circumstances under which a warrantless search not supported by probable cause may be considered reasonable under the Fourth Amendment are very limited.”) (internal quotation marks and citations omitted).