FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH C. RAMIREZ, a/k/a Joe 

Ramirez,

Plaintiff-Appellant, No. 04-56832

v. D.C. No.  CV-03-01754-GLT CITY OF BUENA PARK; PEDRO

MONTEZ; FRANK HORNUNG, e/s/a OPINION

Hank Hornung; MARC ODOM,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Gary L. Taylor, District Judge, Presiding

Argued and Submitted

December 8, 2006—Pasadena, California

Filed March 25, 2009

Before: Alex Kozinski, Chief Judge, Melvin Brunetti and

Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Brunetti

3795
COUNSEL

E. Thomas Barham, Jr. and Shirley A. Ostrow, Law Offices

of Barham and Ostrow, Los Alamitos, California, for the

plaintiff-appellant. 

Mitchell E. Abbott, Michael P. Coyne, and Robert C. Ceccon,

Richards, Watson, & Gershon, Los Angeles, California, for

the defendants-appellees. 

OPINION

BRUNETTI, Circuit Judge: 

On May 2, 2003, Officer Pedro Montez of the Buena Park

Police Department noticed a car parked outside a drugstore.

Montez observed Joseph C. Ramirez in the car’s driver’s seat,

apparently asleep at the wheel. Montez subsequently detained,

searched, and arrested Ramirez for being under the influence

of a controlled substance. Montez and two other officers then

impounded Ramirez’s car for its safekeeping. Montez issued

Ramirez a citation and released him on his own recognizance

after performing additional tests (including a blood test) at the

police station. The blood test later came back negative and no

charges were filed. 

Ramirez filed the present 42 U.S.C. § 1983 action against

Montez seeking damages for the detention, search, arrest, and

blood test, and against Montez and the other two officers for

the impoundment of his car. Ramirez also included a Monell

RAMIREZ v. BUENA PARK 3799
claim against Buena Park for the impoundment of his car, and

five state law claims against the defendants. 

The defendants filed a motion for summary judgment and

Ramirez filed a partial motion for summary judgment. The

district court granted the defendants’ motion on Ramirez’s

section 1983 and state law claims, and denied Ramirez’s partial motion for summary judgment. Ramirez now appeals. We

have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm

in part, reverse in part, and remand for further proceedings. 

I. Factual background 

A few minutes before 8:00 p.m. on May 2, 2003, Ramirez

sat parked in his red BMW convertible outside a Rite Aid

pharmacy on Beach Boulevard in Buena Park, California.

Montez was patrolling the area in his patrol car when he

noticed Ramirez’s car with its parking lights on. The parties

dispute many of the facts relating to Montez’s subsequent

detention, search, and arrest of Ramirez. 

A. The detention 

While still in his patrol car, Montez observed that

Ramirez’s seat was reclined and that Ramirez had his eyes

closed and appeared to be asleep at the wheel. Montez

decided to investigate further because he was aware that several grab-and-run type thefts of alcohol had occurred at the

location and that getaway vehicles are commonly used in

thefts and robberies. Montez was also concerned that Ramirez

may have had some medical problem, or may have been physically impaired.

Montez is certified by The International Association of

Chiefs of Police as a Drug Recognition Expert. Montez

attended an eighty-hour program administered by the California Highway Patrol which included training on the techniques

of drug influence evaluation, recognition of the signs and

3800 RAMIREZ v. BUENA PARK
symptoms of persons under the influence of drugs, and the

physiology and effects of drugs on the body. Montez also

received extensive instruction and demonstrated proficiency

on how to properly conduct vital sign and eye examinations,

and the use of approved field sobriety tests. The training program instructed Montez that many drugs, including Central

Nervous System (CNS) stimulants, may significantly increase

respiration; that falling asleep quickly, inappropriately, and

sometimes uncontrollably, is a common side effect of CNS

stimulants; that irritability is a general indicator of CNS stimulant use; that pupil dilation beyond 6.5mm is indicative of

drug use; that the normal adult pulse rate is 60 to 90 beats per

minute and that an elevated pulse is indicative of drug use;

and that distorted time perception is indicative of drug use.

Montez pulled behind Ramirez’s vehicle, got out of his

patrol car, and walked up to Ramirez’s driver’s-side door.

According to Montez—as related in his March, 2004 deposition and in a declaration made in September of 2004 and

attached to the defendants’ motion for summary judgment—

after reaching the driver’s-side door, he observed Ramirez for

three to five seconds. During this time, Montez claims

Ramirez’s eyes were closed and that he appeared to be breathing rapidly, as if he had been exercising. Montez estimated

that Ramirez took “[a]bout 10, 12” breaths during this threeto-five-second period. Montez also illuminated Ramirez’s

chest/waist area with his flashlight, observed Ramirez’s hands

in his front by his waist area, and then knocked on the window. According to Montez, Ramirez opened his eyes, looked

at him and either opened the window or the driver’s door

slightly. Montez claims that Ramirez appeared irritable and

aggressive and assertively asked if it was necessary to knock

on his window. Montez told Ramirez that he was checking on

him and asked what he was doing. Ramirez responded that he

was tired and was taking a nap. According to Montez,

Ramirez’s pupils appeared to be dilated beyond the normal

range. Montez began to suspect that Ramirez might be under

the influence. Still not satisfied as to what Ramirez was

RAMIREZ v. BUENA PARK 3801
doing, Montez asked him to get out of the car to further investigate. Ramirez complied. At this point, Montez observed that

Ramirez’s keys were in the ignition.

According to Ramirez, he had been sleeping about twenty

to twenty-five minutes when Montez knocked on his window.

Ramirez also claims he was not breathing rapidly when Montez first observed him. Although he was asleep at that time

and therefore could not have been aware of his breathing pattern, Ramirez relies on Montez’s police report dated May 3,

2003 to support this claim. Ramirez notes that Montez’s

police report describes the events of May 2, 2003 chronologically, and that in the report, Montez “noticed Ramirez had

dilated pupils and appeared to be breathing fast,” only after he

“tapped the driver’s seat window, and Ramirez opened his

eyes and looked at [him].” After being startled by the knocking on his window, Ramirez slightly opened his door to talk

to Montez. According to Ramirez, Montez’s first questions

were about drinking or doing drugs. Ramirez responded that

he did not drink or do drugs. Although Ramirez’s counsel

conceded at oral argument that Ramirez’s response “could be

accurately characterized as testy,” Ramirez claims that he was

neither irritable nor aggressive when he “calmly but firmly

asked [Montez] if this was a standard procedure to go around

banging on glass windows of persons that are sitting or sleeping in their cars.” Montez responded by clenching his teeth,

staring at Ramirez “with an extreme hard look,” and exclaiming, “Okay we were going to do this the easy way. I would

have asked a couple questions and you would have been on

your way. But now we will do it the hard way. Get out of your

car!” Startled and very frightened, Ramirez complied. Furthermore, Ramirez contends that Montez could not have seen

his pupils from where Montez was standing while Ramirez

was still seated in his vehicle. Although Ramirez could not

see into his own eyes, he offered photographic evidence, produced after the fact, to show the unlikelihood Montez was

able to see his pupils during the initial encounter. Construing

these facts in the light most favorable to Ramirez, we must

3802 RAMIREZ v. BUENA PARK
assume Montez was unable to sufficiently see Ramirez’s

pupils. This, however, does not mean we assume Ramirez’s

pupils were not dilated, but rather that his pupil dilation is not

a factor to be considered in the reasonable suspicion and probable cause determination.

B. The pat-down search 

According to Montez, he performed a pat-down search for

officer safety once Ramirez stepped out of his car. Montez

testified that he tapped Ramirez’s outer garments to make

sure there were no bulges or weapons concealed. Montez did

not mention the pat-down search in either his police report or

his declaration in support of the defendants’ motion for summary judgment. Montez testified that he did not include the

pat-down search in his police report because it was “something that [he] would recall, so [he] . . . didn’t put it in there.”

According to Ramirez, once he was out of his vehicle Montez ordered him to put both hands on top of the car. Montez

proceeded to search Ramirez, which included reaching into

his pockets. Ramirez did not consent to the search.

C. The arrest and impoundment

According to Montez, after performing the pat-down search

he took Ramirez’s pulse and found it to be 132 beats per minute. Montez also administered a field sobriety test called the

“Romberg test.” The Romberg test evaluates an individual’s

internal clock by asking the individual to estimate the passing

of thirty seconds while standing with his eyes closed and his

head tilted back. It is within the acceptable margin of error for

an individual to take between twenty and forty seconds to

estimate the passing of thirty seconds. According to Montez,

Ramirez took forty-five seconds to estimate the passing of

thirty seconds. As a precaution, Montez also requested that a

follow-up officer respond because once out of his vehicle,

Ramirez appeared to be irritable and confrontational. AccordRAMIREZ v. BUENA PARK 3803
ing to Montez, because Ramirez had exhibited several classic

signs of being under the influence of a controlled substance,

including apparent uncontrollable sleepiness, irritability, rapid

breathing, dilated pupils, markedly elevated pulse and distorted time perception, along with the lack of any medical

explanation for his symptoms, he arrested Ramirez for violation of California Health and Safety Code § 11550.1

According to Ramirez, after the pat-down search, Montez

demanded to know what kind of drugs he was doing. 

Ramirez again told Montez that he did not use drugs or drink

alcohol. After ordering Ramirez to hold out his left arm, Montez held Ramirez’s left wrist for about fifteen seconds while

he looked at his watch. According to Ramirez, he explained

to Montez that many times he worked about seventy-five to

eighty hours a week as the owner of an Outback Steakhouse

in Buena Park, that he was simply resting in the parking lot

because he was very tired, and that his home was located a little over a mile away. According to Ramirez, Montez then had

him sit in the backseat of the patrol car while Montez used the

car’s computer console. Ramirez claims that Montez then

ordered him out of the car and administered three field sobriety tests: the Romberg test, the finger to nose test (which

required Ramirez to extend his arms parallel to the ground, to

tilt his head back, and to touch his nose with alternating index

fingers), and the pupil measurement test. According to

Ramirez, he performed the finger to nose test perfectly. Montez then handcuffed Ramirez and placed him in the back of

the patrol car.

In response to Montez’s request for a follow-up officer,

Buena Park police officers Frank Hornung and Marc Odom

arrived at the scene. Upon their arrival, Montez asked

Hornung and Odom to store Ramirez’s vehicle for safekeep1Section 11550 prohibits persons from either using or being under the

influence of certain enumerated controlled substances. Cal. Health &

Safety Code § 11550. 

3804 RAMIREZ v. BUENA PARK
ing, and they did so pursuant to California Vehicle Code

§ 22651(h)(1).2

Montez then transported Ramirez to the police station

where he conducted further tests in an effort to determine

what class of drug (or drugs) Ramirez may have taken. Montez testified that it was at the police station that he first measured Ramirez’s pupils with a pupilometer. After

administering the tests, Montez “opined” that Ramirez was

under the influence of a CNS stimulant. Montez then ordered

a blood test. Montez issued Ramirez a citation and released

him on his own recognizance. The blood test later came back

negative.

II. Standard of review 

In the defendants’ motion for summary judgment, they

argued that Montez, Hornung, and Odom were qualifiedly

immune from Ramirez’s section 1983 claims, that Buena Park

was entitled to judgment on Ramirez’s unlawful seizure claim

(for the impoundment), and that they were entitled to judgment on Ramirez’s state law claims. The district court concluded that Montez was entitled to qualified immunity for his

detention, search, and arrest of Ramirez, that the defendants

were entitled to judgment on Ramirez’s unlawful seizure

2Section 22651 provides in pertinent part: 

A peace officer . . . or a regularly employed or salaried employee,

who is engaged in directing traffic or enforcing parking laws and

regulations, of a city, county, or jurisdiction of a state agency in

which a vehicle is located, may remove a vehicle located within

the territorial limits in which the officer or employee may act,

under the following circumstances: 

. . . . 

(h)(1) When an officer arrests a person driving or in control of

a vehicle for an alleged offense and the officer is, by this code

or other law, required or permitted to take, and does take, the person into custody. 

RAMIREZ v. BUENA PARK 3805
claim, and that there were no triable issues of material fact on

Ramirez’s state law claims.

We review a district court’s grant of summary judgment de

novo. Davis v. City of Las Vegas, 478 F.3d 1048, 1053 (9th

Cir. 2007). We also review a district court’s decision as to

whether an officer’s actions are entitled to qualified immunity

de novo. Id. We evaluate separately the applicability of the

qualified immunity defense to each of Ramirez’s constitutional claims. See Bingham v. City of Manhattan Beach, 341

F.3d 939, 948 (9th Cir. 2003) (officer entitled to qualified

immunity for arrest though not for initial traffic stop).- 

III. Qualified immunity 

[1] “Qualified immunity is ‘an entitlement not to stand trial

or face the other burdens of litigation.’ ” Saucier v. Katz, 533

U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.

511, 526 (1985)). We evaluate a defendant’s qualified immunity defense using a two-step inquiry. Id. However, the

Supreme Court recently held that this two-step inquiry is no

longer “an inflexible requirement.” Pearson v. Callahan, 129

S. Ct. 808, 818 (2009) (explaining “that, while the sequence

set forth [in Saucier] is often appropriate, it should no longer

be regarded as mandatory”). It is within our “sound discretion

in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances

in the particular case at hand.” Id.

Under Saucier’s first prong, we consider whether, “[t]aken

in the light most favorable to the party asserting the injury,

. . . the facts alleged show the officer’s conduct violated a

constitutional right.” Saucier, 533 U.S. at 201. Where disputed issues of fact remain, we view the facts in the light most

favorable to Ramirez, the non-moving party. See Beier v. City

of Lewiston, 354 F.3d 1058, 1063 (9th Cir. 2004). “If no constitutional right would have been violated were the allegations

3806 RAMIREZ v. BUENA PARK
established, there is no necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201. 

Under Saucier’s second prong, we ask “whether the right

was clearly established.” Id. To be “clearly established,” the

“ ‘contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Id. at 202 (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1987)). The dispositive inquiry is

“whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. “If the

officer’s mistake as to what the law requires is reasonable, . . .

the officer is entitled to the immunity defense.” Id. at 205. 

A. The detention 

Ramirez first argues that his initial detention violated the

Fourth Amendment because Montez did not have reasonable

suspicion to order him to step out of his car. “The Fourth

Amendment prohibits ‘unreasonable searches and seizures’ by

the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional

arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002);

United States v. Willis, 431 F.3d 709, 714 (9th Cir. 2005). In

such cases, the Fourth Amendment is satisfied if the officer’s

action is supported by reasonable suspicion. Arvizu, 534 U.S.

at 273. While reasonable suspicion requires “considerably less

than proof of wrongdoing by a preponderance of the evidence,” an officer must be able to articulate facts creating

grounds to suspect that criminal activity “may be afoot.”

United States v. Sokolow, 490 U.S. 1, 7 (1989); United States

v. Hartz, 458 F.3d 1011, 1017 (9th Cir. 2006). We consider

“the totality of the circumstances-the whole picture” when

evaluating reasonable suspicion. Sokolow, 490 U.S. at 7. 

In this case, because the parties do not dispute that a seizure

occurred for Fourth Amendment purposes when Montez

ordered Ramirez out of his car, we evaluate the detention’s

RAMIREZ v. BUENA PARK 3807
constitutionality by considering the totality of the circumstances at that point. See id. at 7-8. “[I]n justifying the particular intrusion the police officer must be able to point to specific

and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

Terry v. Ohio, 392 U.S. 1, 21 (1968). Taking the facts in the

light most favorable to Ramirez, when Montez ordered

Ramirez out of his car he knew the following: a few minutes

before 8:00 p.m., Ramirez sat parked outside a drugstore with

his parking lights on; Ramirez’s seat was reclined; Ramirez

had his eyes closed and appeared to be asleep at the wheel;

Ramirez appeared to be breathing rapidly; and Ramirez gave

a “testy” response when Montez tapped on his window.

Although each fact, standing alone, is completely legal,

“[c]onduct innocent in the eyes of the untrained may carry

entirely different ‘messages’ to the experienced or trained

observer.” United States v. Bernard, 623 F.2d 551, 560 (9th

Cir. 1980) (quotation marks and citation omitted). To Montez,

who had eighty hours of training in drug influence recognition, these facts taken together amounted to reasonable suspicion that Ramirez was under the influence of illegal

stimulants. 

[2] In fact, it is highly unusual to find someone asleep

behind the wheel of a parked car, with its parking lights on,

outside a drugstore at 8:00 p.m. The Fourth Amendment was

not implicated when Montez approached Ramirez’s driver’sside door, knocked on his window, and asked if he was willing to answer a few questions. United States v. Washington,

490 F.3d 765, 770 (9th Cir. 2007). The additional facts Montez learned shortly thereafter supported his suspicion that

Ramirez may have been under the influence of a controlled

substance. First, the fact that stimulant use can cause uncontrollable sleepiness remains undisputed. Uncontrollable sleepiness is consistent with sleeping at an unusual place and time

without bothering to turn off the parking lights. Moreover, it

is also undisputed that irritability and rapid breathing are

characteristic of illegal stimulant use. Although Ramirez

3808 RAMIREZ v. BUENA PARK
claims he was not breathing fast, this mere assertion cannot

create a disputed issue. He offers no evidence to the contrary,

but instead attempts to point to a contradiction in Montez’s

declaration and police report. Montez, however, did not contradict himself; his declaration says Ramirez was breathing

quickly while sleeping, and his police report confirms the

quick breathing, without specifying when it began. Furthermore, nobody disputes that Ramirez’s breathing was “abnormal[ly]” fast after he woke up. As a result, we must accept

Montez’s assertion that Ramirez was breathing quickly while

asleep. 

[3] Montez therefore could legally detain Ramirez by

ordering him out of his vehicle to further investigate. Having

concluded that Montez’s detainment of Ramirez did not violate the Fourth Amendment, the district court properly granted

Montez summary judgment on this claim. Saucier, 533 U.S.

at 201 (“If no constitutional right would have been violated

were the allegations established, there is no necessity for further inquiries concerning qualified immunity.”).

B. The pat-down search 

[4] Ramirez next argues that the pat-down search violated

the Fourth Amendment because Montez did not have reason

to believe that he was armed and dangerous. Under the Fourth

Amendment, a search for weapons is permissible “for the protection of the police officer, where he has reason to believe

that he is dealing with an armed and dangerous individual.”

Terry, 392 U.S. at 27; see also Ybarra v. Illinois, 444 U.S. 85,

93-94 (1979) (“The ‘narrow scope’ of the Terry exception

does not permit a frisk for weapons on less than reasonable

belief or suspicion directed at the person to be frisked . . . .”).

“Nothing in Terry can be understood to allow a generalized

‘cursory search for weapons’ or indeed, any search whatever

for anything but weapons.” Ybarra, 444 U.S. at 93-94. 

A wide variety of factors support a reasonable belief that an

individual is armed and dangerous. These include an officer’s

RAMIREZ v. BUENA PARK 3809
observation of a visible bulge in an individual’s clothing, see

United States v. Alvarez, 899 F.2d 833, 839 (9th Cir. 1990);

sudden movements or repeated attempts to reach for an object

not immediately visible, see United States v. Flippin, 924

F.2d 163, 164-66 (9th Cir. 1991); and the nature of the suspected crime, see United States v. Mattarolo, 209 F.3d 1153,

1158 (9th Cir. 2000). However, facts merely establishing that

if an individual were armed he would be dangerous are insufficient if there was no reason to believe that the individual

actually was armed. See United States v. Flatter, 456 F.3d

1154, 1157 (9th Cir. 2006). 

[5] Montez’s only justification for the pat-down search of

Ramirez is a conclusory reference to “officer safety.” Montez

has not alleged any specific facts that would establish reasonable suspicion that Ramirez was armed and dangerous. See

Terry, 392 U.S. at 27. On the contrary, Ramirez was cooperative. He complied with Montez’s request that he exit his vehicle, and there is no evidence he did so in a furtive manner.

There is nothing in the record to suggest Ramirez made any

abrupt movements or that he attempted to reach for anything

upon exiting his vehicle. He also cooperatively submitted to

the search of his person, albeit without his consent. Montez

testified that he tapped Ramirez’s outer garments “to make

sure” there were no bulges or weapons concealed, but does

not allege that he observed a visible bulge or weapon on

Ramirez. Unless an officer can point to specific facts that

demonstrate reasonable suspicion that the individual is armed

and dangerous, the Fourth Amendment tolerates no frisk.

Knowles v. Iowa, 525 U.S. 113, 117-119 (1998). 

[6] Being “testy” and suspected of illicit drug use does not

support a finding that Ramirez had a weapon. Although the

nature of the suspected crime itself does at times provide the

requisite amount of reasonable suspicion to conduct a patdown search of a detained individual, see Mattarolo, 209 F.3d

at 1158, this court has never held that mere suspicion of drug

use alone provides the basis for a Terry frisk. Indeed, to hold

3810 RAMIREZ v. BUENA PARK
that the pat-down here was consistent with the strictures of the

Fourth Amendment would be to hold that a Terry frisk of a

person is justified any time an officer believes an individual

is under the influence, even though the officer lacks a reasonable suspicion that the person is armed and dangerous. Such

a holding would be in direct conflict with Terry and its progeny, and would destroy the necessary distinction between the

stop and frisk. “Each element, the stop and the frisk, must be

analyzed separately; the reasonableness of each must be independently determined.” United States v. Thomas, 863 F.2d

622, 628 (9th Cir. 1988). Because Montez could not have reasonably suspected Ramirez had a weapon, we hold his patdown of Ramirez violated the Fourth Amendment. 

[7] Having determined the existence of a constitutional violation, we consider whether the right violated was clearly

established at the time of its occurrence. Saucier, 533 U.S. at

201-202. At the time of Ramirez’s pat-down, it was clearly

established that every pat-down is unreasonable unless it is

supported by the officer’s reasonable suspicion that the person

to be frisked is armed and dangerous. Terry, 392 U.S. at 27.

Based on the complete lack of evidence that would support a

reasonable suspicion Ramirez had a weapon, and Montez’s

wholly inadequate justification for the search, we conclude

that it would have been clear to a reasonable officer that a patdown of Ramirez was unlawful in this situation. As a result,

Montez is not entitled to qualified immunity on the pat-down

issue. Furthermore, there remains a factual dispute as to

whether Montez impermissibly searched inside Ramirez’s

pockets. This disputed issue of fact also precludes the grant

of summary judgment in Montez’s favor.

C. The arrest 

[8] Ramirez next argues that his arrest violated the Fourth

Amendment because it was not supported by probable cause.

Montez arrested Ramirez pursuant to Cal. Health & Safety

Code § 11550, which prohibits persons from either using or

RAMIREZ v. BUENA PARK 3811
being under the influence of certain enumerated controlled

substances. The Fourth Amendment requires police officers to

have probable cause before making a warrantless arrest. See

Michigan v. Summers, 452 U.S. 692, 700 (1981); United

States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). “Probable cause to arrest exists when officers have knowledge or

reasonably trustworthy information sufficient to lead a person

of reasonable caution to believe that an offense has been or

is being committed by the person being arrested.” Lopez, 482

F.3d at 1072 (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)).

While conclusive evidence of guilt is not necessary to establish probable cause, “[m]ere suspicion, common rumor, or

even strong reason to suspect are not enough.” McKenzie v.

Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984) (citing Henry v.

United States, 361 U.S. 98, 101 (1959)). 

After Montez ordered Ramirez out of his car, he learned a

few additional facts before placing him under arrest. First,

knowing that the normal adult pulse rate is sixty to ninety

beats per minute and that an elevated pulse rate is indicative

of drug use, Montez found Ramirez’s pulse to be 132. Second, Ramirez told Montez that many times he worked about

seventy-five to eighty hours a week as the owner of an Outback Steakhouse in Buena Park, and that he was resting in the

parking lot because he was very tired, despite having slept 6

hours the previous night, and despite being only a little over

a mile from his home. Third, knowing that distorted time perception is indicative of drug use, Montez observed Ramirez

take forty five seconds to estimate the passing of thirty seconds during the Romberg test. Fourth, Ramirez performed the

finger to nose test perfectly.

Ramirez argues that his pattern of working long hours,

which he conveyed to Montez, sufficiently explained why he

was sleeping in his car. Furthermore, according to Ramirez,

he was not irritable or aggressive, not antagonistic, and spoke

calmly but firmly. Ramirez claims that his pulse was elevated

because he was “startled” by Montez knocking on his window

3812 RAMIREZ v. BUENA PARK
and ordering him out of his car. Ramirez also contends that

Montez could not have seen his pupils from where Montez

was standing during the initial detention. And, Montez testified that the first time he measured Ramirez’s pupils with a

pupilometer was at the police station. 

“ ‘As a corollary . . . of the rule that the police may rely on

the totality of facts available to them in establishing probable

cause, they also may not disregard facts tending to dissipate

probable cause.’ ” Lopez, 482 F.3d at 1073 (quoting Bigford

v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)). Therefore,

Ramirez’s perfect performance of the finger to nose test is relevant when considering the importance of his alleged distorted time perception. See Caballero v. City of Concord, 956

F.2d 204, 207 (9th Cir. 1992) (noting evidence did not clearly

establish probable cause where parties disputed performance

on sobriety tests). However, in considering the totality of the

circumstances, Ramirez’s innocent explanations for his odd

behavior cannot eliminate the suspicious facts from the probable cause calculus. Rarely will a suspect fail to proffer an

innocent explanation for his suspicious behavior. “The test is

not whether the conduct under question is consistent with

innocent behavior; law enforcement officers do not have to

rule out the possibility of innocent behavior.” Thomas, 863

F.2d at 627 (quoting United States v. Sutton, 794 F.2d 1415,

1427 (9th Cir. 1986)) (internal quotation marks omitted). 

[9] Bypassing the constitutional question in the qualified

immunity analysis, we exercise our discretion in reaching

Saucier’s second prong first, see Pearson, 129 S. Ct. at 818,

as it will “satisfactorily resolve” the arrest issue without having “unnecessarily to decide difficult constitutional questions.” See Brosseau v. Haugen, 543 U.S. 194, 201-202

(2004) (Breyer, J., concurring) (urging the Court to reconsider

Saucier’s mandatory, two-step protocol). Therefore, in determining whether the right here was clearly established, we ask

“whether it would be clear to a reasonable officer [in Montez’s shoes] that his conduct was unlawful in the situation he

RAMIREZ v. BUENA PARK 3813
confronted.” Saucier, 533 U.S. at 202. The qualified immunity test gives “deference to the judgment of reasonable officers on the scene.” Id. at 205 (emphasis added). We conclude

that the objective facts known to Montez when he ordered

Ramirez out of his car (apparent uncontrollable sleepiness,

irritability, rapid breathing), together with the information

Montez obtained after Ramirez was out of his car (elevated

pulse rate and distorted time perception), could lead a reasonable officer confronted with the same situation to believe

probable cause existed to arrest Ramirez. 

[10] At the time of Ramirez’s arrest, it was clearly established that every arrest “is unreasonable unless it is supported

by probable cause.” Summers, 452 U.S. at 700. While the “existence of probable cause necessarily turns upon the particular

facts of the individual case, and prior decisions generally are

of little help in deciding a specific case,” John v. City of El

Monte, 515 F.3d 936, 941 (9th Cir. 2008), we conclude that

a reasonable officer in Montez’s position would not have

clearly known that his conduct was unlawful under these circumstances. See Saucier, 533 U.S. at 202. Although we do

not decide whether the facts allege a constitutional violation,

we do find that Montez’s actions were reasonable in light of

the qualified immunity analysis. Thus, Montez is entitled to

summary judgment on this issue. 

D. The impoundment 

[11] Ramirez next argues that Montez, Hornung, and

Odom’s impoundment of his car was an unreasonable seizure

under the Fourth Amendment. “The impoundment of an automobile is a seizure within the meaning of the Fourth Amendment.” Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th

Cir. 2005). While Section 22651 authorizes an officer to

remove a vehicle in the control of a person arrested, an

impoundment pursuant to the authority of a “state statute does

not, in and of itself, determine the reasonableness of the seizure under the Fourth Amendment.” Id. at 864. “ ‘The ques3814 RAMIREZ v. BUENA PARK
tion in this [c]ourt upon review of a state-approved search or

seizure is not whether the search (or seizure) was authorized

by state law. The question is rather whether the search was

reasonable under the Fourth Amendment.’ ” Id. at 865 (quoting Sibron v. New York, 392 U.S. 40, 61 (1968)). 

[12] “ ‘A seizure conducted without a warrant is per se

unreasonable under the Fourth Amendment-subject only to a

few specifically established and well delineated exceptions.”

Id. at 862 (quoting United States v. Hawkins, 249 F.3d 867,

872 (9th Cir. 2001)). Montez testified that Ramirez’s car was

taken for “safekeeping” after he was arrested, and when asked

whether the “only reason that [he] wanted [Ramirez’s car]

removed was for safekeeping,” Montez testified, “Correct.”

Therefore, the relevant exception is the “community caretaking” doctrine, which allows police officers to “impound vehicles that ‘jeopardize public safety and the efficient movement

of vehicular traffic.’ ” Miranda, 429 F.3d at 864 (quoting

South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976)). 

[13] “Whether an impoundment is warranted under this

community caretaking doctrine depends on the location of the

vehicle and the police officers’ duty to prevent it from creating a hazard to other drivers or being a target for vandalism

or theft.” Miranda, 429 F.3d at 864. Here, Montez’s concern

that Buena Park might be held liable if Ramirez’s car was

stolen, vandalized, or some harm came to it was reasonable.

There is nothing in the record indicating when Ramirez could

return to the drugstore to retrieve his car. Leaving Ramirez’s

car in the drugstore parking lot would have made it an easy

target for vandalism or theft. Therefore, we conclude that the

officers’ impoundment of Ramirez’s car for its “safekeeping”

was reasonable under the community caretaking doctrine. See

Hallstrom v. City of Garden City, 991 F.2d 1473, 1477 n.4

(9th Cir. 1993) (“[I]t was not unreasonable for the arresting

officers to protect the car from vandalism or theft by having

it towed” from a parking lot.); United States v. Jensen, 425

RAMIREZ v. BUENA PARK 3815
F.3d 698, 706 (9th Cir. 2005) (officer’s concerns about vandalism were reasonable). 

[14] Having concluded that the officers’ impoundment of

Ramirez’s car did not violate the Fourth Amendment, the district court properly granted the officers summary judgment on

this claim. Saucier, 533 U.S. at 201 (“If no constitutional right

would have been violated were the allegations established,

there is no necessity for further inquiries concerning qualified

immunity.”).

E. The blood test 

The district court also granted summary judgment to the

defendants on Ramirez’s claim that the blood test performed

at the police station following his arrest constituted an unreasonable search. Because Ramirez does not address this issue

in his opening brief, we deem it waived. See Outdoor Media

Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir.

2007) (“Generally, the federal courts deem waived any arguments that are not raised and presented in the parties’ opening

briefs.”). Therefore, we affirm the district court’s grant of

summary judgment to the defendants on this claim.

IV. Municipal liability 

[15] Ramirez next argues that Buena Park is also liable for

the impoundment of his car because it had an unconstitutional

policy and because it failed to train its officers. However, having concluded that the officers’ impoundment of Ramirez’s

car was reasonable under the community caretaking doctrine,

Buena Park may not be held liable under section 1983. Tatum

v. City and County of San Francisco, 441 F.3d 1090, 1100

(9th Cir. 2006) (absent a constitutional deprivation city could

not be held liable under section 1983); see also Orin v. Barclay, 272 F.3d 1207, 1217 (9th Cir. 2001) (“A § 1983 action

against a city fails as a matter of law unless a city employee’s

conduct violates one of the plaintiff’s federal rights.”). There3816 RAMIREZ v. BUENA PARK
fore, the district court properly granted Buena Park summary

judgment on this claim. 

V. State law claims 

Ramirez’s complaint also alleges state law claims for false

arrest/imprisonment, trespass to personal property, intentional

infliction of emotional distress, negligence, and battery. In

their Motion for Summary Judgment, the defendants argued

that they were entitled to summary judgment on each these

claims. Ramirez did not address his state law claims in either

his Motion for Partial Summary Judgment or in his Opposition to Defendants’ Motion for Summary Judgment. Now on

appeal, Ramirez argues that the district court erred when it

granted the defendants summary judgment on all of his state

law claims.

[16] “ ‘It is a general rule that a party cannot revisit theories

that it raises but abandons at summary judgment.” Davis, 478

F.3d at 1058 (quoting BankAmerica Pension Plan v. McMath,

206 F.3d 821, 826 (9th Cir. 2000)). “ ‘A party abandons an

issue when it has a full and fair opportunity to ventilate its

views with respect to an issue and instead chooses a position

that removes the issue from the case.’ ” Id. (quoting McMath,

206 F.3d at 826). Here, because Ramirez abandoned his state

law claims by not addressing them in either his Motion for

Partial Summary Judgment or his Opposition to Defendants’

Motion for Summary Judgment, he waived his challenge to

the district court’s order. Therefore, we affirm the district

court’s grant of summary judgment to the defendants on

Ramirez’s state law claims. 

VI. Evidentiary objection 

Ramirez now also argues that the district court should not

have admitted portions of certain declarations into evidence.

While Ramirez objected to the declarations’ admission, the

district court never ruled on the objections, and Ramirez never

RAMIREZ v. BUENA PARK 3817
requested a ruling on the objections. Therefore, we do not

consider Ramirez’s evidentiary objection. See Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066-67 (9th Cir. 1996) (evidentiary objection waived when district court does not rule on

objection and no ruling requested by objecting party).

VII. Conclusion 

For the forgoing reasons, we reverse the district court’s

grant of summary judgment to Montez with respect to

Ramirez’s section 1983 claim for the unlawful pat-down

search, and remand. We affirm the district court’s grant of

summary judgment to the Montez with respect to Ramirez’s

detention and arrest. We also affirm the district court’s grant

of summary judgment to the defendants with respect to the

impoundment of Ramirez’s car and the blood test. 

We also affirm the district court’s grant of summary judgment to the defendants on all of Ramirez’s state law claims.

Finally, we deem Ramirez’s evidentiary objection waived. 

AFFIRMED in part, REVERSED in part, and

REMANDED for further proceedings consistent with this

opinion. 

3818 RAMIREZ v. BUENA PARK