Dith

MEMORANDUM *

I

The Diths argue that the magistrate judge lacked probable cause to issue the search warrant for their apartment because Detective Romero’s sworn statement of probable cause did not describe their particular apartment. See U.S. Const, amend. IV; Cal. Const, art I, § 13; Illinois v. Gates, 462 U.S. 213, 238 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983); Greenstreet v. County of San Bernardino, 41 F.3d 1306, 1310 (9th Cir.1994). We reject this argument because the search warrant and affidavit incorporated by reference a description of the Diths’ particular apartment — a description to which Romero swore under oath.

The Diths also argue that the magistrate judge lacked probable cause to issue the search warrant for their apartment because Romero’s sworn statement of probable cause did not establish the reliability of his confidential reliable informant (C.R.I.). Under the totality of circumstances, however — particularly the narcotics purchase that the C.R.I. executed in cooperation with the police — our “commonsense” assessment is that Romero’s statement of probable cause established a “fair probability” that searching the Diths’ apartment would uncover “contraband or…

I agree with my colleagues that the district court’s grant of summary judgment in favor of the defendants on the Diths’ probable cause claim was correct. I concur also with respect to their disposition of the Diths’ “judicial deception” claim. However, I respectfully disagree with my colleagues’ conclusion that the Diths’ knock and announce claim presents a genuine issue of material fact that must go beyond summary judgment to a factfinder.

As explained by the Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986) a dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248 , 106 S.Ct. 2505 . If not, the moving party is entitled to “judgment as a matter of law.” Fed.R.Civ.P. § 56(c). The same rule holds true during the course of a trial by jury. If, after a “party has been fully heard on an issue and there is no reasonably sufficient evidentiary basis for a reasonable jury to find for that party on that issue,” the court may determine that issue and grant a motion for judgment as a matter of law. Fed.R.Civ.P. § 50(a)(1). The purpose of…