Moreno-Toro v. City of Lake Stevens

JANET MORENO-TORO, Plaintiff, v. CITY OF LAKE STEVENS, et al. Defendants.

CASE NO. C13-1723JLR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

October 14, 2014

ORDER GRANTING SUMMARY JUDGMENT

I. INTRODUCTION

This matter comes before the court on Defendants' motion for summary judgment. (Mot. (Dkt. # 25).) Defendants include the City of Lake Stevens ("Lake Stevens") and four Lake Stevens police officers: Jared Wachveitl, Ron Brooks, Steve Warbis, and Dean Thomas. Plaintiff Janet Moreno-Toro alleges that these four police officers executed an unreasonable search and seizure of her house. For the following reasons, the court GRANTS Defendants' motion for summary judgment.

II. BACKGROUND

Unless otherwise noted, the following facts are undisputed.¹ This case began when Officer Warbis received a report that a stolen generator had potentially been located. (Cochran Decl. (Dkt. # 20) Ex. 2 ("Warbis Rep.") at 1.) The generator in question belonged to Douglas Montzingo, and had previously been stolen from him by an unknown person. (Id.) Mr. Montzingo and his wife had located the generator listed for sale on the internet website "Craigslist," and contacted the police in an effort to recover it. (Id.) The generator was listed for sale by Ms. Moreno-Toro's husband, Cesar Zalvaza. (Id.; Cochran Decl. Ex. 3 ("Wachveitl Rep.") at 1.)

At the police department, Officer Wachveitl overheard Officer Warbis' conversation with Mr. Montzingo. (Wachveitl Rep. at 1 .) He recognized the address associated with the Craigslist ad, and remembered that he had previously investigated Mr. Zalvaza for trafficking stolen tools in 2010. (Id.; Wachveitl. Decl. (Dkt. # 26) ¶ 7.) Officer Wachveitl was unable to complete that investigation due to time constraints imposed by his duties as a patrol officer at that time, but he recalled that the police had suspected Mr. Zalvaza of operating out of the same Lake Stevens address as a "fence" for new and used power tools. (Wachveitl. Decl. ¶ 7; Wachveitl Rep. at 1.) He also recalled that Mr. Zalvaza drove a new red Jeep. (Wachveitl. Decl. ¶ 7.)

Officer Warbis instructed Mr. Montzingo to tell Mr. Zalvaza that he was interested in purchasing the generator, and to make an appointment to see it. (Warbis Rep. at 1.) On the day of the appointment, February 3, 2013, Officer Warbis, Officer Wachveitl, and Officer Brooks met with Mr. and Ms. Montzingo in a church parking lot near Mr. Zalvaza's house and advised them to determine if the generator for sale was in fact their generator. (Warbis Rep. at 1.)

At 11:30 a.m., the Montzingos drove to Mr. Zalvaza's house, met with both Mr. Zalvaza and Ms. Moreno-Toro, inspected the generator, and confirmed it was the stolen unit. (Id. at 1-2.) In particular, Mr. Montzingo confirmed that the serial number on the generator for sale matched the serial number of his stolen generator. (Id.) The Montzingos left Mr. Zalvaza and Ms. Moreno-Toro on the pretext that they needed to obtain the cash necessary to purchase the generator; in fact they returned to the parking lot to meet the officers a second time. (Id. at 2; see generally Wachveitl Decl. Exs. 3, 4 (Mr. and Ms. Montzingo's witness statements).)

While they were meeting with the officers, however, Mr. Zalvaza drove by the parking lot in his red Jeep. (Wachveitl Rep. at 1; Brooks Rep. (Dkt. # 20) Ex. 4 at 1.) Both Mr. Montzingo and Officer Wachveitl recognized Mr. Zalvaza. (Wachveitl Rep. at 1; Brooks Rep. at 1.) The officers realized that their meeting was visible from the road. (Wachveitl Rep. at 1.) They grew concerned that if Mr. Zalvaza recognized that the officers were talking to the Montzingos, he would return to the house to destroy evidence of his suspected trafficking activity or, alternatively, call Ms. Moreno-Toro and warn her to do the same. (Id.)

To prevent this, Officer Brooks went immediately to Mr. Zalvaza's residence. (Brooks Rep. at 1.) When he arrived, he observed that the garage door was open and the generator in question was still in the garage. (Id.) The garage was attached to the residence. (Wachveitl Rep. at 2.) Officer Brooks also observed numerous other "high-quality yard tools, chainsaws, weed eaters, generators, and air compressors" in the garage. (Brooks Rep. at 1.) Officer Brooks knocked on the door of the house and Ms. Moreno-Toro answered. (Id.) He asked if Mr. Zalvaza was home, and Ms. Moreno-Toro responded that he was not, but he would be back soon. (Id.) Officer Brooks told her that the police suspected Mr. Zalavaza was in possession of a stolen generator, and that they intended to secure the residence pending a search warrant. (Id.; Cochran Decl. Ex. 1 ("Moreno-Toro Decl.") ¶ 3.) Ms. Moreno-Toro warned Officer Brooks not to enter the house or garage without a warrant. (Moreno-Toro Decl. ¶ 3.) He complied. (Brooks Rep. at 1.)

Shortly thereafter, Officer Wachveitl arrived on the scene. (Id.; Moreno-Toro Decl. ¶ 4.) Officer Wachveitl "observed an excessive amount of power tools, equipment, along with a few appliances," which he described as "more power tools and equipment than several ordinary people may own combined." (Wachveitl Rep. at 2 (emphasis removed).) Without entering the garage, he began taking photographs of the tools through the open garage door. (Id.; Moreno-Toro Decl. ¶ 4.) At this point, Ms. Moreno-Toro opened a door that connected the garage to the house and yelled at him to stay out of the garage unless he had a warrant. (Moreno-Toro Decl. ¶ 4; Wachveitl Rep. at 2.)

Officer Wachveitl was "taken aback" by Ms. Moreno-Toro's tone of voice. (Wachveitl Rep. at 2.) He reported: "She sounded as though she was angered by our presence at her residence. My training and experience as a police officer have taught me that few people talk to law enforcement in an aggressive manner like [Ms.] Moreno-Toro had just done." (Id.) If he had been in close quarters with Ms. Moreno-Toro, he "would have thought of her actions as a strong pre-attack indicator of possible future physical assault." (Id.) He concluded that Ms. Moreno-Toro was distrustful of him and Officer Brooks. (Id.) After realizing that the garage was connected to the house by a door, he grew concerned that Mr. Zalvaza could have told Ms. Moreno-Toro to quickly conceal property from the garage inside the house. (Id.) He was also worried that later someone could use the connecting door to ambush the officers while they were searching the garage. (Id.)

Officer Wachveitl went around to the front door and explained to Ms. Moreno-Toro that a search warrant for her residence was on its way, and that in the meantime she would be required to leave the residence. (Id.; Moreno-Toro Decl. ¶ 4.) At this time, he intended to request a search warrant for the entire residence. (Wachveitl Decl. at 2.) Ms. Moreno-Toro was holding a toddler who was feeling sick that day. (Moreno-Toro Decl. ¶ 2; Wachveitl Rep. at 3.) Officer Wachveitl told Ms. Moreno-Toro that he was going to look around her house to ensure no other persons remained inside. (Wachveitl Rep. at 3; Moreno-Toro Decl. ¶¶ 4-5.) He reported that he did so in order to confirm that no one inside the house could conceal or destroy evidence or plan an ambush of the officers when they returned with the search warrant. (Wachveitl Rep. at 2.) Ms. Moreno-Tororeiterated that she did not consent to a search without a warrant. (Id.) Nonetheless, Officer Wachveitl walked through the residence, followed by Ms. Moreno-Toro. (Id.) Officer Wachveitl inspected "the living room, bedrooms, closets, behind curtains, in the showers, bathrooms, kitchen, laundry room, and master bedroom walk-in closet, and then proceeded through [the] downstairs area and exited through the garage." (Id.) Ms. Moreno-Toro testified that the search took about 20 minutes.² (Id.)

At the conclusion of the search, Officer Wachveitl explained to Ms. Moreno-Toro that it would take several hours to obtain the search warrant, and that in the meantime she could not stay in her home. (Wachveitl Rep. at 3.) He informed her that she was free to remain in the vehicle outside her home, and that if she needed any items for her child, an officer would escort her into the house to retrieve them. (Id.) This instruction made Ms. Moreno-Toro feel "very agitated and upset," but she complied. (Moreno-Toro Decl. ¶ 6.)

Shortly thereafter, Mr. Zavalza returned to the scene, having been alerted to the situation by Ms. Moreno-Toro. (Id. ¶ 3; Wachveitl Rep. at 3.) He claimed that he had purchased the generator at a pawn shop, and that he would email the police a receipt. (Wachveitl Rep. at 3.) The police department, however, did not receive any such email before the warrant for the residence issued. (Id. at 5.)

Officer Wachveitl left to begin drafting an affidavit for a search warrant, and Mr. Zalvaza and Ms. Moreno-Toro departed in separate cars. (Id. at 4.) Ms. Moreno-Toro,picked up her 17-year-old daughter from work at approximately 2:30 p.m. and returned to the residence at approximately 3:00 p.m. (Moreno-Toro Decl. ¶ 7.) By then Officer Warbis had arrived on the scene. (Id. ¶ 7.) Ms. Moreno-Toro told him that her daughter needed to retrieve some clothes from inside the house. (Id.; Warbis Rep. at 2.) Officer Warbis permitted the daughter to enter the house unaccompanied to change clothes. (Warbis Rep. at 2; Moreno-Toro Decl. ¶ 7.) Ms. Moreno-Toro then left again, this time in order to drop her daughter off at her friend's house, and returned approximately 10 minutes later. (Moreno-Toro Decl. ¶ 7.)

When Ms. Moreno-Toro returned, she demanded to be let back into the house, but Officer Brooks refused to let her return unescorted. (Id. ¶ 7; Brooks Rep. at 1.) Ms. Moreno-Toro later claimed that she only wanted to re-enter in order to obtain food and diapers for her sick child. (Moreno-Toro Decl. ¶ 7.) Officer Brooks was concerned that she was yelling at the officers, so he called the police department to check on the status of the warrant....