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Todd M. Chism, Individually and As Husband and Wife v. Washington State

August 25, 2011

TODD M. CHISM, INDIVIDUALLY AND AS HUSBAND AND WIFE;
NICOLE C. CHISM, INDIVIDUALLY AND AS WIFE AND HUSBAND,
PLAINTIFFS-APPELLANTS,
v.
WASHINGTON STATE;
WASHINGTON STATE PATROL; RACHEL GARDNER, INDIVIDUALLY;
JOHN SAGER, INDIVIDUALLY, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of Washington Lonny R. Suko, Chief District Judge, Presiding D.C. No. 2:09-cv-00025-LRS

The opinion of the court was delivered by: Paez, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted February 11, 2011-Seattle, Washington

Before: Betty B. Fletcher, Richard A. Paez, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Paez;

Dissent by Judge Ikuta

OPINION

This civil rights action under 42 U.S.C. § 1983 arises from an internet child pornography investigation by Washington State Police (WSP) Officers Rachel Gardner and John Sager ("the officers"). As a result of information the officers acquired, Todd Chism became the focus of their investigation. Gardner prepared an affidavit in support of a search warrant application, which Sager reviewed. On the basis of that affidavit, a magistrate judge issued a broad search warrant to search Todd Chism's home and business office. Relying on the same information contained in Gardner's affidavit, Deputy Prosecuting Attorney Christian Peters obtained from the same magistrate judge a warrant to arrest Todd for violating Wash-ington's child pornography laws.*fn1 A few days later, several WSP officers executed the search and arrest warrants.*fn2 A WSP detective eventually conducted forensic examinations of the Chisms' home computer and computers from the Spokane Fire Department, where Todd Chism worked as a firefighter. The investigation did not reveal any evidence of child pornography, and charges were never filed against Todd Chism.

Several months later, Todd and his wife, Nicole Chism, filed this § 1983 action against the State of Washington, the WSP, Detective Gardner, and Sergeant Sager, alleging- among other things not relevant to this appeal-that the officers violated their Fourth and Fourteenth Amendment rights by securing the search and arrest warrants with an affidavit that deliberately or recklessly contained material omissions and false statements.*fn3 The Chisms and the officers filed cross motions for summary judgment on the issue of qualified immunity as to the constitutional claim. The district court granted the officers' motion, concluding that the officers' conduct did not violate a clearly established constitutional right of which a reasonable officer would have known. The Chisms timely appealed.

We reverse the district court's judgment and remand this case for trial. Viewing the evidence in the light most favorable to the Chisms, we conclude that the Chisms have made a substantial showing of the officers' deliberate falsehood or reckless disregard for the truth and have established that, but for the dishonesty, the searches and arrest would not have occurred. We also conclude that the officers are not entitled to qualified immunity because the Chisms' right to not be searched and arrested as a result of judicial deception was clearly established at the time Gardner prepared and submitted her affidavit.

I. BACKGROUND

On July 3, 2007, Washington's Missing and Exploited Children Task Force (MECTF) received a tip from the National Center for Missing and Exploited Children (NCMEC). The tip advised MECTF that roughly one week earlier, the web-hosting company Yahoo! had archived images of child pornography that were contained on the web-site http://foelonipwin-cmezixecvom.us/ (the "foel website"). The tip listed Yahoo! user account qek9pj8z9ec@yahoo.com (the "first user account") as the "suspect." The tip stated that Internet Protocol (IP) address 68.113.11.49*fn4 was used to open the first user account on May 11, 2007. The tip did not provide the time or date that the child pornographic images were uploaded to the foel website, nor did it provide the IP address from which the child pornographic images were uploaded. Detective Gardner was assigned to investigate this tip.

On July 17, 2007, MECTF received another tip from NCMEC. Similar to the first tip, the July 17 tip indicated that two weeks earlier, Yahoo! archived images of child pornography that were contained on the website http://qemtudawyownufiseip.com (the "qem website"). The tip listed Yahoo! user account qaagwcyI9ab@yahoo.com (the "second user account") as the "suspect." The tip stated that IP address 67.160.71.115 was used to open the second user account on June 19, 2007. The tip did not provide the time or date that the child pornographic images were uploaded, nor did it provide the IP address from which the child pornographic images were uploaded. WSP Detective Vic Mauro was assigned to investigate this tip.

The detectives began their investigations by obtaining warrants to search Yahoo! records associated with the first and second user accounts.*fn5 In agreement with the first NCMEC tip, the Yahoo! records indicated that the foel website was created on May 11, 2007. The information for the first user account listed the name "Mr. Nicole Chism" with birthday May 20, 1966. The information indicated that "Mr. Nicole Chism" lived in Chile and used zip code "ucc16." The Yahoo! records also showed that the first user logged in to the account on June 18, 2007 from IP address 69.147.83.181, a different IP address than the one used to create the foel website. The billing information associated with the first user account listed Nicole Chism's name and contained the Chisms' correct residential address, phone number, and credit card number, which ended in 6907. Finally, the Yahoo! records showed that two months of "domain service" for the foel website had been paid with the Chisms' credit card.*fn6 The Chisms' credit card statements confirm that they were twice charged a monthly fee for domain service for the foel website.

The information that Yahoo! provided about the second user account was similar in character. In agreement with the second NCMEC tip, the Yahoo! records indicated that the qem website was created on June 19, 2007. The information for the second user account listed the name "Mr. Nicole Chism" with a birthday of March 11, 1977; indicated that "Mr. Nicole Chism" was from Bolivia; and used zip code "nf897." The Yahoo! records also showed that the second user logged in twice since opening the account. On July 3, 2007, the second user logged in twice: once from IP address 69.147.83.181 (the IP address from which the first user logged in on June 18, 2007), and once from a different IP address. Yahoo! did not provide any billing information for the second user account, but the Chisms' credit card statements showed that Yahoo! charged them one hosting fee for the qem website on June 22, 2007.

Detectives Gardner and Mauro also independently obtained warrants to trace the IP addresses used to create the two user accounts and websites. Detective Gardner learned that the IP address used to open the first user account and to create the foel website was traced to Cheryl Corn of Walla Walla, Washington. The IP address used to open the second user account and to create the qem website was traced to Vitina Pleasant of Federal Way, Washington. It appears that neither Gardner nor Mauro traced IP address 69.147.83.181-the IP address from which the first user logged in on June 18, 2007 and the second user logged in on July 3, 2007.

A few months later, Mauro's assignment was transferred to WSP Detective Shelby Wilcox. After reviewing the information from Yahoo!, Gardner and Wilcox noticed that both user accounts used the name "Mr. Nicole Chism" and both web-sites had at some point been accessed from the IP address

69.147.83.181. Gardner and Wilcox concluded that the tips might be connected, and Gardner took over the investigation of both tips. Gardner decided to investigate the Chism lead, largely because Nicole's name was common to both tips.

Gardner first determined that the Chisms' 6907 card was a Bank of America Visa credit card. Gardner contacted Bank of America in September 2007 and learned from a Bank of America employee that the Chisms had reported a lost credit card in 2006. The 6907 card was a replacement for the lost card. The Bank of America employee, however, informed Gardner that no fraudulent activity had been reported on the 6907 card.*fn7 Gardner eventually obtained credit card statements for the 6907 card and confirmed that the Chisms had paid two charges for the foel website and one charge for the qem website. On the basis of this information, Gardner concluded that there was probable cause to believe that Todd Chism had committed a crime.

In January 2008, Gardner submitted a search warrant application and affidavit to a magistrate judge and obtained a warrant to search the Chisms' home in Nine Mile Falls, Washington, and Todd Chism's workplace in Spokane, Washington. Sager reviewed the affidavit and agreed that probable cause existed. On the same day, Deputy Prosecuting Attorney Christian Peters obtained a warrant to arrest Todd for "[s]ending, bringing into the state depictions of minor engaged in sexually explicit conduct and [p]ossession of depictions of [m]inor engaged in sexually explicit conduct." The warrants were executed five days later. WSP officers arrested, detained, and interrogated Todd; they scoured the Chisms' home; and they seized the Chisms' computers. No child pornography was found, and criminal charges were never filed against Todd.

The Chisms sued the State of Washington, the WSP, Detective Gardner, and Sergeant Sager under 42 U.S.C. § 1983, alleging violations of their constitutional rights. Both the Chisms and the officers moved for summary judgment on the issue of qualified immunity, and the district court granted the officers' motion and denied the Chisms' motion. The district court then declined to exercise supplemental jurisdiction over the Chisms' state law claims, pursuant to 28 U.S.C. § 1367(c)(3), and dismissed them. The Chisms appeal the district court's grant of summary judgment.

II. ANALYSIS

[1] We review de novo a grant of summary judgment on the ground of qualified immunity, and "must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005) The officers are entitled to qualified immunity unless: (1) the Chisms have "ma[de] out a violation of a constitutional right," and (2) "the right at issue was 'clearly established' at the time of [the officers'] alleged misconduct." Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)); Bull v. City and Cnty. of San Francisco, 595 F.3d 964, 971 (9th Cir. 2010) (en banc). We may consider the two prongs of the qualified immunity analysis in any order. Pearson, 555 U.S. at 236. We begin with the first prong.

A. Constitutional Violation

[2] The Chisms argue that the officers violated their Fourth Amendment rights through judicial deception.*fn8 For the Chisms' judicial deception claim to survive summary judgment, the Chisms "must 1) make a substantial showing of [the officers'] deliberate falsehood or reckless disregard for the truth and 2) establish that, but for the dishonesty, the [searches and arrest] would not have occurred." Liston v. Cnty. of Riverside, 120 F.3d 965, 973 (9th Cir. 1997) (citing Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995)) (internal quotation marks omitted).*fn9

[3] We first observe that Gardner's affidavit contained several false statements and omissions. The first false statement contained in Gardner's affidavit was her assertion that, "[b]ased on the information received from NCMEC about the images downloaded by Todd M. Chism, it is likely to believe he was using internet service at his residence and/or his business office." Gardner's allusion to "images downloaded by Todd M. Chism" is inaccurate. When Gardner drafted the affidavit, she possessed no information that Todd had ever accessed any child pornographic images, let alone the particular images that were uploaded to the qem and foel websites. Nor did Gardner have any evidence that the images were ever downloaded by anyone. As far as Gardner knew, the only evidence linking Todd to the websites was the fact that the credit card he shared with Nicole was used to pay the hosting fees for the sites. Thus, Gardner's assertion that Todd downloaded images of child pornography was not a truthful representation of the evidence she had gathered.

[4] The second false statement contained in Gardner's affidavit was her assertion that the Chisms' credit card was "used to purchase the images of child pornography from the web-site." This statement was false because the Chisms' credit card was not used to buy images of child pornography. Rather, the Chisms' card was used to pay hosting fees for the sites to which illegal images were uploaded at some unknown time, date, and ...


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