NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 7 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEONARD A. LAWSON, Jr., No. 15-35907

Plaintiff-Appellant, D.C. No. 3:11-cv-00151-SLG

v.

MEMORANDUM *

JEFFERY GREGG; MONIQUE DOLL;

NATHANIEL CLEMENTSON; MICHAEL

DAHLSTROM; RICHARD F.

YOUNGBLOOD,

Defendants-Appellees.

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 Bivens v. Six Unknown Named Agents of 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. Bureau of Narcotics, 403 U.S. 388 (1971), against Defendants-Appellees Jeffery

Gregg and Monique Doll, both assigned as Drug Enforcement Administration

(“DEA”) Task Force Officers in the Anchorage Police Department, as well as

Defendants-Appellees Richard Youngblood, Nathaniel Clementson, and 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 and 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 cause. A different panel of

this 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

the district court granted the officers’ motion to dismiss based on the doctrine of

qualified immunity. Lawson timely 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.

2 15-35907 1. Plaintiff-Appellant fails to demonstrate that the district court erred in

concluding 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 could 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 room 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 because 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 court erred however, in determining that Youngblood, the Unit

Supervisor, was also entitled to qualified immunity on this basis. Clearly

3 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. Because the device

had malfunctioned, the 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

them 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. Wilson, 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 qualified 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 Defendants-

Appellees’ position would have known he was violating clearly established Fourth

Amendment jurisprudence because the Defendants-Appellees took 64 photographs,

4 15-35907 obtained luggage tag and computer information, and recovered a black container

hidden behind the 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 qualified 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-Appellant 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 was 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 qualified immunity to

Defendants-Appellees with regard to their arrest of Plaintiff-Appellant and entry

5 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 consistent with

this disposition. Each party should bear its own costs.

AFFIRMED IN PART; AND REVERSED AND REMANDED IN

PART.

6 15-35907

FILED

Lawson, Jr. v. Gregg, No. 15-35907

MAY 07 2018

Judge Schroeder, concurring in part and dissenting in part.

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree with the majority that the officers were not entitled to immunity for

the putative protective sweep of the house. I must respectfully disagree with my

colleagues’ conclusion that it was reasonable for the officers to believe that when

they entered they were complying with the warrant. The same facts were before

this court when Mr. Lawson appealed his conviction. We vacated on the ground

that “the police did not comply with the conditions of the warrant.” United States

v. Lawson, 499 F. App’x 711, 712 (9th Cir. 2012). We explained that the warrant

authorized entry to the house if the device “failed to transmit.” Id. The problem

was that the device did transmit, emitting a continuous tone before it reached the

house, and the police entered anyway.

For this reason our prior panel correctly held the officers did not comply

with the warrant and vacated the conviction. The majority today does not

expressly disagree with that conclusion, yet holds that the officers were reasonable

in deciding they were authorized to enter. I would hold, consistent with our earlier

decision, that the entry was unreasonable. I agree with the prior panel there were

no exigent circumstances. See id. Accordingly, the district court’s dismissal of

this action should be reversed, and I respectfully dissent.