NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 27 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD BRUBAKER; BARBARA No. 18-15742

STAPLETON,

D.C. No. Plaintiffs-Appellees, 4:10-cv-00649-DCB-BPV

v.

MEMORANDUM*

CITY OF TUCSON, a municipal corporation; et al.,

Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding

Argued and Submitted February 8, 2019 Phoenix, Arizona

Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.

In this 42 U.S.C. § 1983 action, Richard Brubaker claims that two police

officers violated the Fourth Amendment by deceptively obtaining a warrant to search

his home. The district court denied the officers’ summary judgment motion seeking

qualified immunity. We have jurisdiction over the officers’ interlocutory appeal of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the district court order under 28 U.S.C. § 1291 and affirm.

1. The affidavit submitted in support of the application for the search

warrant represented that Tucson police officers encountered Donald Deal “in the

area of a residence that we have received information from concerned citizens that

they were selling narcotic drugs.” Although the quoted statement is hardly a model

of clear draftsmanship, its obvious import is that the officers had received complaints

about drug sales at the Brubaker residence. That statement is inaccurate.

Complaints about drug sales in the general area in which Deal was arrested may have

been received, but no prior complaint involved Brubaker’s home.

2. The district court found a material issue of fact existed as to whether

the officers intentionally lied or made the statement with reckless disregard for the

truth. We cannot review that finding in this interlocutory appeal. See Eng v. Cooley,

552 F.3d 1062, 1067 (9th Cir. 2009) (“A district court’s determination that the

parties’ evidence presents genuine issues of material fact is categorically

unreviewable on interlocutory appeal.”). Thus, the remaining issue for resolution is

whether “the affidavit, once corrected and supplemented, would provide a magistrate

with a substantial basis for concluding that probable cause existed.” United States

v. Stanert, 762 F.2d 775, 782 (9th Cir. 1985). The corrected affidavit would have

informed the magistrate only that Deal, with whom the officers had never previously

interacted and whose version of events was not corroborated, identified Brubaker’s

2 residence as the place where he had unsuccessfully attempted to buy drugs. That is

insufficient to establish probable cause to search a home. See United States v.

Mendonsa, 989 F.2d 366, 369 (9th Cir. 1993) (finding no probable cause when an

informant without a track record provided an uncorroborated tip that the defendant

was selling drugs in his home).

AFFIRMED.

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