NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN FINKELSTEIN; JENNIFER 

FINKELSTEIN, 

Plaintiffs-Appellees, 

 v. 

VISHAL D. JANGLA, 

Defendant-Appellant, 

and 

SAN MATEO COUNTY DISTRICT 

ATTORNEY'S OFFICE; et al., 

Defendants.

No. 19-15139 

D.C. No. 3:18-cv-00009-EMC 

MEMORANDUM*

JOHN FINKELSTEIN; JENNIFER 

FINKELSTEIN, 

Plaintiffs-Appellees, 

 v. 

NICOLAS RYAN, 

Defendant-Appellant, 

No. 19-15497 

D.C. No. 3:18-cv-00009-EMC 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JUN 22 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

and 

VISHAL D. JANGLA; et al., 

Defendants.

JOHN FINKELSTEIN; JENNIFER 

FINKELSTEIN, 

Plaintiffs-Appellees, 

 v. 

JEFFREY S. CICHOCKI, 

Defendant-Appellant, 

and 

VISHAL D. JANGLA; et al., 

Defendants.

No. 19-15511 

D.C. No. 3:18-cv-00009-EMC 

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding

Argued and Submitted April 14, 2020

San Francisco, California

Before: GOULD, CHRISTEN, and BRESS, Circuit Judges.

Detective Nicolas Ryan, Detective Jeffrey S. Cichocki, and Deputy District 

Attorney Vishal D. Jangla appeal the district court’s denial of summary judgment 

based on qualified immunity. With jurisdiction under 28 U.S.C. § 1291 and 
3 

reviewing de novo, Mena v. City of Simi Valley, 226 F.3d 1031, 1036 (9th Cir. 2000), 

we reverse on each claim, except for the denial of summary judgment for Deputy 

District Attorney Jangla on the judicial-deception claim, which we affirm.1

I

The first question we address is whether the Defendants are entitled to 

qualified immunity for the probable-cause claims. We answer affirmatively. 

A law enforcement officer is entitled to qualified immunity unless a plaintiff 

can prove (1) the officer violated a constitutional right and (2) the right was clearly 

established at the time of the conduct. Pearson v. Callahan, 

555 U.S. 223, 231–32 (2009). In the context of this case, the question is whether the 

Defendants conducted a search without probable cause, and whether the law clearly 

established that there was no probable cause. “Only where the warrant application 

is so lacking in indicia of probable cause as to render official belief in its existence 

unreasonable will the shield of immunity be lost.” Malley v. Briggs, 475 U.S. 335, 

344–45 (1986) (citing United States v. Leon, 468 U.S. 897, 923 (1984)); see also

Messerschmidt v. Millender, 565 U.S. 535, 547–48 (2012).

We hold that the district court erred in denying summary judgment on the 

probable-cause claims because, although the Defendants’ belief in the existence of 

1 Because the parties are familiar with the facts and procedural history of the case, 

we recite only those facts necessary to decide this appeal.
4 

probable cause was incorrect, it was not wholly unreasonable.

Here, probable cause was predominantly predicated on the connection 

between John Finkelstein’s personal email address and a Skype account which was 

used in the alleged sexual exploitation of a minor. Whoever registered the Skype 

account had entered Mr. Finkelstein’s email address to complete the registration 

process. 

Chism v. Washington, 661 F.3d 380 (9th Cir. 2011), recognizes that cyberevidence may not be reliable in certain circumstances. Id. at 391. But in Chism, the 

affidavit’s affirmative misrepresentations and omissions made the link between the 

suspect and the crime more tenuous than here. Id. at 390. Nor does the law as 

established by Chism and its predecessors, see, e.g., United States v. Gourde, 

440 F.3d 1065 (9th Cir. 2006) (en banc), delineate the boundaries of the doctrine 

such that this case is an obvious one. Cf. White v. Pauly, 137 S. Ct. 548, 552 (2017) 

(per curiam).

It was not “entirely unreasonable” for the Defendants to believe that probable 

cause existed. Messerschmidt, 565 U.S. at 547 (quoting Leon, 468 U.S. at 923). The 

Defendants are therefore entitled to qualified immunity on the probable cause 

claims.

II

The second question we answer is whether Detective Cichocki and Deputy 
5 

District Attorney Jangla are entitled to qualified immunity on the judicial-deception 

claims. We answer affirmatively for Detective Cichocki but negatively for Deputy 

District Attorney Jangla.

To overcome qualified immunity on a judicial-deception claim, a plaintiff 

“must 1) make a substantial showing of [an officer’s] deliberate falsehood or 

reckless disregard for the truth and 2) establish that, but for the dishonesty, the 

[searches and arrest] would not have occurred.” Chism, 661 F.3d at 386 (second 

alteration in original) (quoting Liston v. County of Riverside, 

120 F.3d 965, 973 (9th Cir. 1997)). Here, the issue is whether the Finkelsteins made 

a substantial showing that Detective Cichocki’s and Deputy District Attorney 

Jangla’s failure to clarify the meaning of the word “valid” was in reckless disregard 

for the truth.

A

The Finkelsteins made a substantial showing of the recklessness of Deputy 

District Attorney Jangla but not of Detective Cichocki. 

The distinction lies in the proof offered, in their disparate relevant experience 

and testimony. The record shows that Deputy District Attorney Jangla has 

experience in prosecuting cybercrimes and, in particular, in warrant applications in 

cybercrime investigations. Most importantly, Deputy District Attorney Jangla 

testified unequivocally that he was aware that the term “valid email address” meant 
6 

a string of characters in an email address format, not an email account that Skype

verified by requiring that its registering user interact with a confirmatory email 

message. The Finkelsteins made a substantial showing that Deputy District Attorney 

Jangla’s failure to clarify the meaning of the word “valid” in the affidavit was in 

reckless disregard for the truth.

B

But this was not so for Detective Cichocki. The record shows that Detective 

Cichocki had experience in investigating crimes involving the sexual exploitation of 

children but not in investigating cybercrimes. Detective Cichocki’s testimony does 

not unequivocally demonstrate that he understood the distinction between a “valid” 

and “verified” email address. Finally, Detective Cichocki’s acquiescence to 

Detective Ryan’s suggestion to use the term “valid” to reflect the terminology Skype 

itself employs indicates that Detective Cichocki’s actions were not in reckless 

disregard for the truth. Detective Cichocki’s lack of knowledge paired with his 

passivity in the matter lead us to conclude that the Finkelsteins have not made a 

substantial showing as to Detective Cichocki’s recklessness. 

III

We hold that Detective Ryan, Detective Cichocki, and Deputy District 

Attorney Jangla are entitled to qualified immunity on the probable-cause claims. On 

the judicial-deception claims, we hold that Detective Cichocki is entitled to qualified 
7 

immunity but Deputy District Attorney Jangla is not. 

AFFIRMED IN PART; REVERSED IN PART.2

2 The parties shall bear their own costs.
Finkelstein, et al. v. Jangla, et al., Nos. 19-15139, 19-15497, 19-15511

BRESS, Circuit Judge, dissenting in part:

I agree with the majority in all but two respects. 

First, although the court holds that all defendants are entitled to qualified 

immunity on plaintiffs’ claims that the search warrant lacked probable cause, the 

majority concludes, without analysis, that defendants’ “belief in the existence of 

probable cause was incorrect.” In my view, we should not have opined in this 

manner on what is an involved and fact-bound constitutional question, especially

when doing so is not necessary to our resolution of this appeal given our 

determination that defendants deserve qualified immunity. Pearson v. Callahan, 

555 U.S. 223, 237 (2009). I thus do not join this aspect of the court’s disposition.

Second, I believe we should also reverse the denial of qualified immunity on 

the judicial deception claim against Deputy District Attorney Jangla. I thus 

respectfully dissent from Part II.A of the majority’s disposition, which allows this 

claim to proceed.

A judicial deception claim will survive summary judgment on grounds of 

qualified immunity only if the plaintiffs make, among other things, “‘a substantial 

showing of [a defendant’s] deliberate falsehood or reckless disregard for the truth.’” 

Chism v. Washington, 661 F.3d 380, 386 (9th Cir. 2011) (quoting Liston v. Cty. of 

Riverside, 120 F.3d 965, 973 (9th Cir. 1997)). Plaintiffs have not met that high 

FILED

JUN 22 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

standard as to Jangla, and so he deserves qualified immunity on this claim.

In this case, and as relevant to the judicial deception claim, someone used a 

Skype account to sexually exploit a minor. An investigation revealed the account 

was linked to Mr. Finkelstein’s email address, so law enforcement obtained a 

warrant to search his home and belongings. The warrant application, which Jangla 

reviewed and approved, stated that “[i]n order to create a Skype account a valid email 

is necessary” and that Mr. Finkelstein’s email was “used to create” the suspect’s 

Skype account.

The issue is whether it was false or recklessly misleading for the search 

warrant application to state that Skype required a “valid” email address, when at the 

time Skype did not require registrants to supply a “verified” email address. Because 

Jangla testified he understood the difference between a “valid” and “verified” email 

address, the majority concludes plaintiffs “made a substantial showing” that Jangla’s

“failure to clarify the meaning of the word ‘valid’ in the affidavit was in reckless 

disregard for the truth.”

I respectfully disagree. The warrant application was accurate on its face: 

Skype at the time required only a “valid” email address, and the warrant application 

tracked the language on Skype’s own website, which instructed registrants to “[u]se

a valid email address” when creating an account. That Jangla understood the 

technical difference between a “valid” and “verified” email address does not connote 
3 

judicial deception. I am aware of no evidence suggesting that Jangla should have 

known that referring to a “valid” email address would misleadingly suggest that a 

“verified” address was required, or that a “valid” address is commonly regarded as 

a “verified” one. Jangla himself did not believe this. He testified that requiring a 

verified email addressis not “standard in the industry” and there “are a lot of services 

that don’t offer that or don’t require that.”

I thus cannot conclude that Jangla demonstrated a reckless disregard for the 

truth. He did not engage in judicial deception and is entitled to qualified immunity 

on this claim.