NOT FOR PUBLICATION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 APPEALS2

and VISHAL D. JANGLA; et al.,

Defendants.

JOHN FINKELSTEIN; JENNIFER FINKELSTEIN,

Plaintiffs

- Appellees,

v. JEFFREY S. CICHOCKI,

Defendant

- Appe llant,
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 and3

r eviewing 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 D eputy 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 affir matively. 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, 23 1

– 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 in dicia 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 wh olly un reasonable. 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 cyber

evidence may not be reliable in certain circumstances

. Id. at 391. But i n 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 ex isted. 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 Deputy5

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 a nd arrest] would not have occurred.” Chism , 661 F.3d at 386 (second alteration in original) (quoting Liston v. C ounty of Riverside , 120 F.3d 965, 973 ( 9th Cir. 1997)) . Here, the issue is whether the Finkelsteins made a substantial showing that Detective Cicho c ki’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 Det ective Cicho c ki.
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” meant6

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
. T he 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
reck less disregard for the truth

. B
But this was n ot so for Detective Cichocki. The record shows that Detective Cichocki had experience in investigati ng crimes involving the sexual exploitation of
children but not in in vestigating cybercrimes. Detective Cich ocki’s testimony does not unequivocally demonstrate that he underst ood the distinction between a “valid”
and “verified” email addres s . Finally, Detective Cicho c ki’s acquiescence to Detective Ryan’s suggestion to use the term “valid” to reflect the termino logy Skype itself employs indicates that Detective Cichocki’s actions were not in reckless disregard for the truth . Detective Cicho ck i’s lack of knowledge paired with his passivity in the matter lead us to conclude that the Finkelsteins have not made a

su bstantial showing as to Detective Cichocki’s recklessness.
III We hold that Detective Ryan, Detective Cicho c ki, and Deputy District Attorney Jangla are enti t led to qualified immunity on the probable

- cause claims. On the judicial

- deception claims, we hold that Detective Cichocki is entitled to qualified7

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 , with out analysis, that defendants ’ “belief in the existence of probable cause was incorrect.” In my view, we should not have opine d in this

manner on what is a n involved and fact

- bound constitutional question , especially
when doing so is not necessary to our resolution of this appeal give n our determination that defendants deserve qualified immunity. Pe arson 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 judgm ent 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 Li ston v. C ty

. of
Riverside , 120 F.3d 965, 973 ( 9th Cir. 1997))

. Plaintiffs have not met th at high 

# FILED

JUN 22 2020 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 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. A n investigation revealed the account
was linked to Mr. Finke l stein’s email address, so law enforcement obtained a
warrant to search his home and be longings. T he 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 th e 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 respe ctfully 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 connote3 judicial deception

. I am aware of no evidence suggesting that Jangla should have
known that referring to a “valid” email address w ould 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 address is not “ standard in the industr y” 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.