Ben Ortiz v. Robert C. Van Auken, and Wayne C. Spencer

Police Sergeant Spencer appeals from the district court’s denial of his motioii for summary judgment on the basis of qualified immunity. Ortiz sued Spencer and others under 42 U.S.C. § 1983 alleging that the police illegally searched his home on the basis of a search warrant unsupported by probable cause. Spencer contends that even if the search was illegal, his conduct in consulting and securing the approval of a deputy district attorney as well as a neutral detached magistrate was objectively reasonable, and thus he is entitled to qualified immunity. We have jurisdiction of this interlocutory appeal pursuant to 28 U.S.C. § 1291 . Mitchell v. Forsyth, 472 U.S. 511, 530 , 105 S.Ct. 2806, 2817 , 86 L.Ed.2d 411 (1985). We reverse the denial of summary judgment and remand for dismissal.

I

Spencer is a sergeant in the Burglary and Narcotics Division of the Visalia, California, police department. On July 16, 1985, he received a telephone call at the Visalia Police Department from a man whose voice had no distinguishing accent. Vadnais, another officer, listened to part of the call. The caller did not identify himself, although Spencer insisted he do so. He told Spencer that nine days…