Gary Willis v. Joseph Mullins

FILED

NOT FOR PUBLICATION

AUG 01 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY WILLIS, No. 14-16071

Plaintiff - Appellant, D.C. No. 1:04-cv-06542-AWI-

BAM

v.

JOSEPH MULLINS; et al., MEMORANDUM*

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Senior District Judge, Presiding

Argued and Submitted May 9, 2016 San Francisco, California

Before: KLEINFELD, IKUTA, and WATFORD, Circuit Judges.

1. The district court erred by granting summary judgment in favor of

defendants on Gary Willis’ Fourth Amendment claim for the warrantless search of

his briefcase. As of March 27, 1996, the date of the briefcase search, this circuit’s

case law concerning third-party consent was settled. Although the Supreme

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Page 2 of 6 Court’s decision in United States v. Matlock, 415 U.S. 164 (1974), did not consider

the effectiveness of a third party’s…

MEMORANDUM *

1. The district court erred by granting summary judgment in favor of defendants on Gary Willis’ Fourth Amendment claim for the warrantless search of his briefcase. As of March 27, 1996, the date of the briefcase search, this circuit’s case law concerning third-party consent was settled. Although the Supreme Court’s decision in United States v. Matlock, 415 U.S. 164 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974), did not consider the effectiveness of a third party’s consent when (1) the third party’s joint access to the property is narrowly prescribed, (2) the objecting party is physically present at the time the third party gave consent, and (3) the objecting party actively opposed the search, this circuit did consider the effect of such factual circumstances, in United States v. Impink, 728 F.2d 1228 (9th Cir. 1984). There, we held that when “a suspect is present and objecting to a search, implied consent by a third party with an inferior privacy interest is ineffective.” Id. at 1234 .

Under Impink , a reasonable jury could conclude that Kathleen Moye’s consent was ineffective, and that defendants’ subsequent search of Willis’ briefcase violated clearly established Fourth…

concurring in part and dissenting in part:

I respectfully dissent with regards to section 1, the briefcase search. I would affirm the dismissal of this section 1983 case.

The question before us is whether the police officers had qualified immunity for the briefcase search, not whether the fruits of the search should have been suppressed. The officers were entitled to qualified immunity because it. would not have been clear to a reasonable officer, given the law at the time, that the constitution prohibited the search of the briefcase. 1 The reason -why is that one of the apparent possessors consented to the search.

Two people occupied the motel room, Gary Willis and Kathleen Moye. Moye testified that she had put various drug paraphernalia into the briefcase, while Willis was not in the room. He had left because they had an argument. No testimony established whether the briefcase was open, closed, or locked when Moye put things into it. Moye testified that she locked the briefcase when Willis put his key in the motel room door. When the police came, she consented to a search of the briefcase, though Willis did not. These facts were sufficient so that a reasonable officer would…