Stephen Burrell v. Mike McIlroy Glen C. Rector, Jeff Thorpe

423 F.3d 1121 Stephen BURRELL, Plaintiff-Appellant, v. Mike McILROY, Glen C. Rector, Jeff Thorpe, Defendants-Appellees. No. 02-15114. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 13, 2004. Filed September 19, 2005. Plaintiff-appellant was represented by Steven A. Engel and Susan Kearns of Kirkland & Ellis LLP of Washington, DC. Defendants-appellees were represented by Peter Angulo of Las Vegas, NV, at oral argument, and by Thomas D. Dilliard, Jr., and Lilli C. Hitt of Rawlings, Olson, Cannon, Gormley & Desruisseaux of Las Vegas, NV, on the briefs. Appeal from the United States District Court for the District of Nevada; Kent J. Dawson, District Judge, Presiding. D.C. No. CV-99-01612-KJD. Before: OAKES, * KLEINFELD, and CALLAHAN, Circuit Judges. CALLAHAN, Circuit Judge: 1 Stephen Burrell (Burrell) appeals the district court's grant of summary judgment on behalf of various detectives of the Las Vegas Metropolitan Police Department in this 42 U.S.C. § 1983 action. This court reviews the grant of summary judgment de novo, and may affirm on any basis supported by the record. Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir.2003);…

Stephen Burrell (Burrell) appeals the district court’s grant of summary judgment on behalf of various detectives of the Las Vegas Metropolitan Police Department in this 42 U.S.C. § 1983 action. This court reviews the grant of summary judgment de novo, and may affirm on any basis supported by the record. Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir.2003); Hell’s Angels Motorcycle Corporation v. McKinley, 360 F.3d 930 , 931 n. 1 (9th Cir.2004). We have jurisdiction under 28 U.S.C. § 1331 , and we affirm.

I

Burrell, a felon with a lengthy history of arrests, was suspected by the Las Vegas Metropolitan Police Department of possessing illegal weapons and drugs. On February 4, 1999, Detective Mcllroy applied for a search warrant to search Bur-rell’s apartment on 1750 Karen Avenue. In the affidavit in support of the search warrant, Detective Mcllroy stated that he had obtained current and past information from reliable informants that led him to believe that Burrell was trafficking in drugs and possessed firearms.

Detective Mcllroy indicated that, in December of 1998, he was contacted by a reliable informant, who told him that “Bur-rell often travels to California and…

dissenting.

I respectfully dissent from the majority’s holding that Detective Rector is entitled to qualified immunity. The majority assumes, without deciding, that Burrell can establish a Fourth Amendment violation. Given the uncontroverted facts in the record, I would hold that Burrell has in fact established a Fourth Amendment violation by the initial warrantless arrest by Detective Rector in the absence of probable cause, which, as defendants conceded at oral argument, was lacking up until the moment officers discovered a weapon in Burrell’s apartment. I would also hold that no reasonable officer in *1127 Detective Rector’s position could have believed that he could properly arrest Burrell without probable cause, or that a detention, much less an arrest, could otherwise be justified as incident to a search under Michigan v. Summers, 452 U.S. 692 , 101 S.Ct. 2587 , 69 L.Ed.2d 340 (1981), where a search warrant had not yet been issued.

The defendants do not controvert that Detective Rector ordered Burrell to get out of his car at gunpoint, forced him face-down to the ground at gunpoint, handcuffed him, placed him in a police car while Burrell’s car was searched and, that…