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This is the final round on the motion before the judge ruled. The ruling
is attached. ---Keith Henson
KINKEL, RODIGER & SPRIGGS
BRUCE DISENHOUSE
3393 Fourteenth Street
Riverside, CAlifornia 92501
(714) 683-2410
GREINES, MARTIN, STEIN & RICHLAND
MARTIN STEIN
9601 Wilshire Boulevard, Suite 544
Beverly Hills, California 90210-5215
(213) 859-7811
Attorney for Defendants County of Riverside, Grover C. Trask, II, Curtis
R. Hinman, Raymond Carrillo, Robert Spitzer and John V. Mosley y
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
H. KEITH HENSON, et al.,
Plaintiffs,
vs.
Raymond Carrillo, et al.,
Defendants.
Case No. SA CV 90-021 JSL (RwRx)
REPLY TO OPPOSITION TO MOTION
TO DISMISS COMPLAINT FOR
DECLARATORY RELIEF AND
DAMAGES
Date: May 14, 1990
Time: 1:00 p.m.
Courtroom: No. 2
Trial Date: None set
MEMORANDUM OF POINTS AND AUTHORITIES
Contrary to plaintiff's assertions, the complaint must be dismissed as
to all of the named defendants because plaintiffs have failed to state a
claim for relief pursuant to the Electronic Communications Privacy Act
and, in any event, defendants are shielded from liability by the
good-faith immunity provided by the statute.
This court will recall that in their motion to dismiss the complaint,
defendants asserted that from a review of the search warrant attached
thereto (Attachment A to complaint), they did not violate or exceed the
specific terms of the search warrant order obtained by them prior to its
execution at Alcor's premises and even if it were otherwise, the named
defendants were entitled to dismissal on the basis of their good-faith
reliance on the facially valid Riverside County Superior Court search
warrant.
In seeking to oppose defendants' motion to dismiss, plaintiffs, rather
than focusing on the specific allegations of their complaint and the
specific statutory and case authority supporting their action, attempt to
establish the invalidity of defendants' conduct and their lack of good
faith in executing a search warrant, relying instead on materials not
incorporated by reference in their complaint or alleged therein. It
would appear that in order to oppose the instant motion to dismiss,
plaintiffs quite improperly attempt to convert defendants' motion to
dismiss predicataed on Federal Rules of Civil Procedure, Rule 12(b)(6),
to a motion for summary judgment pursuant to Federal Rules of Civil
Procedure, Rule 56. This they may not do.
Plaintiffs improperly attempt to shift their focus in opposition to
the otion to dismiss by arguing that defendants had a purported duty to
supply this court with evidentiary materials consisting of the affidavit
in support of search warrant and then proceed to contend that defendants
would have to demonstrate to this court that they had supplied the court
issuing the warrant with tehse materials, thus permitting that court to
find "that there is reason to believe that the contents of a wire or
electronic communication...are relevant to a legitimate law enforcement
inquiry." Opposition, pp. 2-3. Having made this baldface assertion,
plaintiffs then proceed to improperly put before this court the purported
affidavit which they claim was utilized to obtain the search warrant in
this case. However, plaintiffs have cited no authority and, indeed,
defendants are aware of no proper authority which would permit plaintiffs
to bring before this court a document purporting to be the affidavit n
support of search warrant, since, again, plaintiffs are not faced with
opposing a motion for summary judgment, but rather a motion to dismiss
complaint based on the lack of supporting allegations in their complaint
to proceed to trial.
Once this court makes a determination that the materials placed in
plaintiffs' opposition have no proper place in that document, we are left
with an opposition which is barren of any relevant authority to establish
that defendants in fact violated the specific terms of said warrant at
the time of its execution. Moreover, plaintiffs have made no proper
argument to establish that defendants failed to act in good faith in
executing what defendants contend was a facially valid warrant.
While defendants do not quarrel wilth the concept that a search
warrant issuing from a court is inseparable from and must be read in
connection with the underlying affidavits which are attached to it (see
United States v. Stanert, 762 f.2d 775,778 (9th Cir. 1985)), in the
instant case the specific terms of the search warrant affidavit having
not been alleged or incorporated by reference in plaintiffs' compalint,
cannot now be utilized by plaintiffs to suggest that the search warrant
in this case was overbroad, thus somehow negating defendants' assertion
of good-faith immunity. Contrary to plaintiffs' assertion, the search
warrant in the instant case did not declare open season on all books and
records at the property where the search and seizure occurred. Neither
the allegations of the plaintiffs' complaint, nor the search warrant
attached thereto, established that defendants were involved in a search
of unlimited scope.
In sum, based on the arguments contained in defendants' trial motion
to dismiss and this reply, this court should find that the search
involved in the instant case violated neither Fourth Amendment
requirements or the specific terms of the Electronic Communications
Privacy Act or, in the alternative, that the defendants were, in fact,
acting in good faith at the time of the search and seizure at the Alcor
premises.
CONCLUSION
For all of the foregoing reasons, defendants respectfully submit that
this court should grant their motion to dismiss plaintiffs' action for
violation of the Electronic Communications Privacy Act since it is now
obvious that they have failed to plead an appropriate federal claim under
this statute. Rather, plaintiffs' last-minute attempt to shift their
position to establish illegality by virtue of materials never put before
the court properly by way of allegation in the complaint and/or by way of
an incorporation by reference, must be summarily rejected. Since
plaintiffs do not seek leave to amend to attempt to state a proper cause
of action under the federal statute, this court should appropriately
enter a dismissal.
[signed/boilerplate]
UNITED STATES DISCTRICT COURT
MOTION TO DISMISS
H. KEITH HENSON, et al.,
Plaintiffs,
vs.
Raymond Carrillo, et al.,
Defendants.
SA CV 90-021 JSL
ORDER DENYING DEFENDANTS'
MOTION TO DISMISS
The Motion of defendants to dismiss plaintiffs' complaint for
came on for hearing regularly on May 14, 1990.
Defendants moved to dismiss on the grounds that the complaint
failed to state a claim pursuant to Federal Rule of Civil Procedure
12(b)6. Defendants asserted that, as a matter of law, no violation of
the Electronic Communication Privacy Act of 1986, 18 U.S.C section 2701,
et seq. occurred, or, alternately, that defendants are entitled to
dismissal due to their good faith reliance on a facially valid search
warrant.
Having reviewed the papers filed in connection with this matter,
having heard oral argument, and being fully apprised of the relevant
facts and law,
IT IS HEREBY ORDERED that the Motion of defendants to dismiss the
complaint is DENIED. Said denial shall be without prejudice should
defendants wish to raise these same issues later in these proceeding.
IT IS SO ORDERED.
DATED: May 18, 1990
[signed]
J. Spencer Letts
United States District Judge