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Lindsey v. Wyatt

United States District Court, Ninth Circuit

May 27, 2013

DEPUTY CYNTHIA WYATT, DETECTIVE TOM BLACKMAN, DETECTIVE GARY WELBERG, UNION COUNTY, by and through the Union County Sheriff's Office, a political subdivision of the State of Oregon, CITY OF LA GRANDE, by and through the La Grande Police Department, an Oregon municipality, Defendants.

Michelle R. Burrows, Attorney at Law, Sherwood, Oregon, Attorney for Plaintiff

Bruno J. Jagelski, YTURRI ROSE LLP, Ontario, Oregon, Attorney for Defendants Wyatt, Blackman, & Welberg.

Robert S. Wagner, Stan LeGore, MILLER & WAGNER LLP, Portland, Oregon, Attorneys for Defendants Union County & City of La Grande.


MARCO A. HERNANDEZ, District Judge.

This 42 U.S.C. § 1983 action brought by Plaintiffs Randy and Rona Lindsey arises from Plaintiffs' arrest in January 2006 on criminal charges which were later dismissed. Plaintiffs bring malicious prosecution claims against three law enforcement officers and their employing municipalities. Although the individual Defendant law enforcement officers and the Defendant municipalities separately move for summary judgment, both sets of Defendants contend that there was probable cause for the arrest. Each set of Defendants raises additional arguments and the individual Defendants also make objections to evidence submitted by Plaintiffs. Because I agree with Defendants that the undisputed evidence in the record establishes that there was probable cause for the arrest, I grant the motions.


On January 30, 2006, Deveron Schreiner, who was working as a confidential reliable informant (CRI) for the Union County Drug Task Force, gave Kris Mallory $1, 000. Mallory Dep. at 24-25 (Ex. 1 to Jagelski Affid.); Ex. 3 to Jagelski Affid.; see also Ex. 7 to LeGore Affid. (Incident Report). In his deposition, Mallory testified that Schreiner owed him money. Mallory Dep. at 25 (Ex. 1 to Jagelski Affid.). But, he also testified that Schreiner begged Mallory to get him some marijuana. Id. at 27. Mallory agreed to "see what I could do." Id.

Mallory then went to Plaintiffs' home and left the $1, 000 there while taking some marijuana with him. Id. at 27 (Ex. 1 to Jagelski Affid.); Id. at 45, 48 (Ex. 4 to LeGore Decl.). Mallory testified that because Randy Lindsey had been generous in the past with his marijuana and letting people have it, Mallory did not think Randy Lindsey would mind Mallory taking the marijuana from Plaintiffs' home, even though it was a full quarter pound and Plaintiffs were not present. Id. at 45-46 (Ex. 4 to LeGore Decl.); Mallory Dep. at 43-44 (Ex. 35 to Burrows Decl.).

After Mallory left Plaintiffs' home, he was stopped by La Grande Police Officer Tony Barnett for an alleged traffic violation. Ex. 2 to Jagelski Affid. at 2; see also Ex. 7 to LeGore Decl. (Incident Report describing that officers followed Mallory after the CRI gave Mallory the buy money and directed Barnett to make the traffic stop). Defendants Tom Blackman and Gary Welberg of the La Grande Police Department arrived on the scene along with La Grande Police Sergeant Phil Myer. Id . Defendant Cynthia Wyatt of the Umatilla County Sheriff's Office also responded to the scene. Id.

At some point during the stop, a police dog alerted to the presence of marijuana in Mallory's vehicle and Mallory admitted to its possession. Ex. 7 to LeGore Decl. Mallory told the officers he obtained the marijuana from Plaintiffs' house. Mallory Dep. at 56-58 (Ex. 4 to LeGore Decl.). During his deposition, Mallory could not recall if the officers had also asked if he had previously obtained marijuana from Plaintiffs' home, but he confirmed that he possibly told police that he had obtained marijuana from Plaintiffs' residence on a few occasions. Id. at 57, 58-59; Id. at 92 (Ex. 1 to Jagelski Affid.). He also testified that he told the police that Randy Lindsey offered him marijuana all the time. Id. at 68 (Ex. 4 to Jagelski Affid.). Mallory further told the officers that Randy Lindsey would sometimes have several pre-packaged and weighed quarter pounds of marijuana ready and out in the open in the kitchen. Id. at 70-71. Additionally, Mallory told the officers that Randy Lindsey would go to a safe in the computer room of the house to get marijuana, indicating that was where Randy Lindsey kept it. Id . Mallory further told the officers that Randy Lindsey used marijuana with a vaporizer and that the Plaintiffs had firearms in the home. Id. at 80. Mallory also told police that the Plaintiffs had a video surveillance system in the home directed to the grounds outside. Mallory Dep. at 38 (Ex. 4 to LeGore Decl.); Ex. 3 to Jagelski Affid.

Based on the information obtained from Mallory, Defendants Blackman, Welberg, and Wyatt obtained a search warrant to search Plaintiffs' home. See Ex. 22 to Burrows Decl. (transcript of oral presentation to Court Judge Philip Mendiguren who signed the warrant); Ex. 7 to LeGore Decl. (Incident Report noting Judge Mendiguren signed warrant). Police executed the warrant on the evening of January 30, 2006.

The police seized ninety-one items of evidence as catalogued on an Evidence Form compiled by Carol Ann St. Clair (then Carol Ann Beddoe) and Becky Wortman (then Becky Maddock). Ex. 1 to LeGore Decl.; St. Clair Decl.; Wortman Decl. St. Clair is an Evidence Technician for the La Grande Police Department and in 2006, Wortman was an Evidence Technician for the Union County Sheriff's Office. St. Clair Decl. at ¶ 2; Wortman Decl. at ¶ 2. Both were part of the law enforcement team which executed the search warrant at Plaintiffs' residence on January 30, 2006. Id. at ¶ 3. St. Clair and Wortman worked as a team and had an established routine for collecting evidence as they describe in their Declarations. Id. at ¶ 5. The Evidence Form listing the items seized from the residence on January 30-31, 2006 is the first five pages of Exhibit 1 to LeGore's Declaration.[1]

The evidence seized included numerous containers of marijuana and containers of a green or brown leafy substance along with various items of drug paraphernalia including a "Volcanostyle vaporizer, " a bong, marijuana processing equipment, numerous firearms, surveillance equipment, and a large safe. Ex. 1 to LeGore Decl. (describing e.g., Item E-1 as ten bags of marijuana; Item E-2 as three jars of marijuana; Item E-5 as three baggies with green leafy substance and two ashtrays with green leafy substance; Item E-10 as a Smith & Wesson revolver; Item E-13 as two ashtrays, one with green leafy substance and the other with a used joint; Item E-19 as two quart Kerr canning jars with green leafy substance, as well as another jar and bags of green leafy substance; Item E-20 as scales; Item E-26 as a large ziploc bag with green substance; Item E-31 as a surveillance camera; Item E-34 as a stun gun; and Item E-40 as a safe). A live grow operation in the garage was also discovered during the search. Randy Lindsey Dep. at 127 (Ex. 5 to Jagelski Affid.). This included approximately six plants and all the equipment necessary for a grow operation. Id.

Item E-1 was later confirmed to be marijuana and found to have a net weight of 3, 290.2 grams, or 7.25 pounds. Ex. 3 (Oregon State Police Forensic Laboratory Report). The total amount of marijuana seized that evening from Plaintiffs' residence weighed approximately 11.3 pounds. Ex. 7 to LeGore Decl.

On January 31, 2006, an Information for each Plaintiff was filed in Union County Circuit Court charging each Plaintiff with the three offenses noted above. Ex. 8 to LeGore Decl.

On February 3, 2006, the safe found in the Plaintiffs' home was opened. Greenough Decl. at ¶ 3. Wortman, the County's Evidence Technician, as well as Carla Greenough, an Evidence Technician for the La Grande Police Department, inventoried its contents. Id. at ¶ 4; Wortman Decl. at ¶ 7. The same procedure used to inventory the evidence seized the night ...

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