NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LEONARD A. LAWSON, Jr., Plaintiff

- Appellant,

v. JEFFERY GREGG; MONIQUE DOLL; NATHANIE L CLEMENTSON; MICHAEL DAHLSTROM; RICHARD F. YOUNGBLOOD, Defendants

- App ellees. No. 15

- 35907 D.C. No. 3:11

- cv - 00151

- SLG

MEMORANDUM *

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, District Judge, Presiding Argued and Submitted April 10, 2018 Pasadena, California Before: SCHROEDER and M. SMITH, Circuit Judges, and DRAIN, * * District Judge. Plaintiff

- Appellant Leonard Lawson brought the instant civil rights action under 42 U.S.C. § 1983 and Bive ns v. Six Unknown Named Agents o f Federal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation. 

# FILED

MAY 7 2018 MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2 15

- 35907 Bureau of Narcotics , 403 U.S. 388 ( 1971) , against Defendants

- Appell ees Jeffery Gregg and Monique Do ll, both assigned as Drug Enforcement Administration (“DEA”) Task Force Officers in the Anchorage Police Department, as well as Defendants

- Appellees Richard Youngblood, Natha nie l Clementson, a nd Michael Dahlstrom, who are Special Agents with the DEA. Plaintiff

- Appellant ’s Second Amended Complaint alleges that the Defendants

- Appellees violated the Fourth Amendment when they executed an anticipatory warrant without the requisite contingency an d entered Plaintiff

Appellant ’s residence to secure a FedEx package containing cocaine. Plaintiff

Appellant further alleges that Defendants

- Appellees engaged in an overbroad protective sweep and arrested him without probable cau se. A different panel of
t his court vacated Plaintiff

- Appellant ’s criminal conviction for being a felon in possession of a firearm and ammunition, concluding that because the officers failed to comply with the terms of the anticipatory warrant and no exigent circumstances existed, the firearm found during the officers’ sweep should have been suppressed

. Thereafter, Plaintiff brought the instant civil rights action, and
t he district court granted the officers’ motion to dismiss based on the doctrine of qualified immunity. Lawson ti mely appealed this decision. Our review is de novo

. Davis v. City of Las Vegas , 478 F.3d 1048, 1053 (9th Cir. 2007). We have jurisdiction pursuant to 28 U.S.C. § 1291.3 15

- 35907 1

. Plaintiff

- Appellant fails to demonstrate that the district court erred in conclud ing it was reasonable for Gregg, the lead agent, to believe the “fails to transmit” contingency had been met. In light of clearly established precedent requiring interpretation of warrants in a commonsense manner, United States v. Vesikuru , 314 F.3d 1116, 1123 (9th Cir. 2002), it was reasonable for Gregg to conclude that the “fails to transmit” contingency was satisfied once the device malfunctioned and transmitted an erroneous tone that the package had been opened. At that point, a reasonable officer cou ld have believed that the object of the contingency had been met

— namely that the officers were no longer able to determine if the package had been opened. Even though another panel found a Fourth Amendment violation, qualified immunity provides “ample roo m for mistaken judgments” and “makes accommodation for reasonable error.” Hunter v. Byrant , 502 U.S. 224, 229 (1991) ( quoting Malley v. Briggs , 475 U.S. 335, 343 (1986) ). 2. The non

- supervisory officers are likewise entitled to qualified immunity becau se they are permitted to rely on their supervisor’s judgment that the contingencies of the warrant had been met. Ramirez v. Butte

- Silver Bow Cty ., 298 F.3d 1022, 1028 (9th Cir. 2002), aff’d sub nom. Groh v. Ramirez , 540 U.S. 551 (2004). The district cour t erred however, in determining that Youngblood, the Unit Supervisor, was also entitled to qualified immunity on this basis . Clearly4 15

- 35907 established law, Ramirez , 298 F.3d at 1027

- 28, requires supervisors such as Youngblood to read the warrant and understand its scope, which he failed to do

. 3. Youngblood is nonetheless entitled to qualified immunity because it was reasonable for all of the officers to believe exigent circumstances permitted entry into Plaintiff

- Appellant ’ s home to secure the package. Beca use the device had malfunctioned, t he officers could not determine whether the package had been opened and whether its contents had been destroyed. They knew other persons were present at the residence and did not know whether Liza Valcarcel had alerted
t hem to the fact that she was signaled to pull over. Thus, it was reasonable for Defendants

- Appellees to conclude that other persons may attempt to flee or to destroy the contents of the package and any other incriminating evidence. See United States v. W ilson , 865 F.2d 215, 217 (9th Cir. 1989). The district court did not err in granting qualified immunity to the Defendants

- Appellees for the warrantless entry into Plaintiff

- Appellant ’s home. 4. The district court did err in granting the officers quali fied immunity with respect to the protective sweep, which was not “a quick and limited search of [the] premises . . . to protect the safety of police officers or others.” Maryland v. Buie , 494 U.S. 325, 327 (1990). Any reasonable officer in the Defendant s Appellees’ position would have known he was violating clearly established Fourth Amendment jurisprudence because the Defendants

- Appellees took 64 photographs,5 15

- 35907 obtained luggage tag and computer information, and recovered a black container hidden behind th e computer during the protective sweep. See Cuevas v. De Roco , 531 F.3d 726, 735 (9th Cir. 2008). We do not address the parties’ disputes regarding the duration of the protective sweep or amount of prospective damages, as they are irrelevant to our quali fied immunity determination

. Cuevas , 531 F.3d at 735. 5. Lastly, the district court did not err in concluding the officers were entitled to qualified immunity for Plaintiff

- Appellant’s warrantless arrest. The officers reasonably believed they had the authority to enter the premises to secure the package because the warrant’s contingency had been satisfied and/or because exigent circumstances permitted their entry into the home. The shotgun was in plain view, the officers were familiar with Plaintiff

- A ppellant and his prior felony conviction for narcotics trafficking, and they knew a package containing cocaine had just been delivered to his home. Based on “ the totality of the circumstances [ , ]” the officers were reasonable in “conclud[ ing ] that there wa s a fair probability that [ Plaintiff

- Appellant ] had committed a crime. ” United States v. Lopez , 482 F.3d 1067, 1072 (9th Cir. 2007) (quoting United States v. Smith , 790 F.2d 789, 792 (9th Cir. 1986))

. In sum, we affirm the district court’s grant of quali fied immunity to Defendants

- Appellees with regard to their arrest of Plaintiff

- Appellant and entry6 15

- 35907 into his home. We reverse the district court’s grant of qualified immunity with regard to the protective sweep. We remand for further proceedings consisten t with this disposition. Each party should bear its own costs. AFFIRMED IN PART ; AND REVERSED AND REMANDED IN PART .Law

son, Jr. v . Gre g g , No. 15-35907 Judge Sc hr oe de r , c onc ur r ing in par t and disse nting in par t. I a gre e with the m a

jority tha t the offic e rs we re not e ntitle d to im m unity for the p uta tive prote c tive swe e p of the house . I m ust re spe c tfully

disa g re e with m

y

c olle a gue s’ c onc lusion tha t it wa s re a sona

ble for the offic e rs to be lie ve tha t whe n the y e nte re d the y we re c o m

ply ing with the

wa rra nt. The sa

m e fa c ts we re be fore this c ourt whe n M r. La

w son a p pe a le d his c o nvic tion. W e va c a t e d on the ground tha t “ the polic e did not c om

ply with the c onditions of the wa rra nt.” Unite d State

s

v . Law son , 499 F. App’ x 711, 712 (9th C ir. 2012). W e e xpla ine d tha t the wa rra nt

a uthoriz e d e ntry

to the house if the de vic e “ fa ile d to tra nsm it.” Id. The proble m

wa s tha t the de v ic e did tra

nsm i t, e m itting a

c o ntinuous tone be fore it re a c he d the house , a n d the polic e e nte re d a ny wa y . For this re a son our prior pa ne l c o rre c t ly

he l d the offic e rs did not c om ply with the wa

rra n t a nd va c a te d

the c onvic t ion. The m a

jority toda y doe s not

e xpre s sly disa gre e with tha

t c onc lusion, y e t holds tha t the offic e rs we re re a sona b le in de c iding the y we re a

uthoriz e d to e nte r. I would hold, c onsiste nt with our e a rlie r de c ision, tha

t the e ntry wa s unre a sona

ble . I a g re e with the prior pa ne l the re we re

no e xige n t c i rc um sta

nc e s. Se e id. Ac c o rdingly , the distric t c ourt’ s dism issa l of this a c t ion should be

re ve rse d, a

nd I re spe c tfully disse nt. 

# FIL ED

M AY 07 2018
M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALS