Split Tenth Affirms Summary Judgment for Defendants in Civil Rights Case

Hernandez v. Conde, 2008 WL 867968 (3/31/08) (unpub'd) - The Tenth affirms granting summary judgment in a civil rights case raising Franks issues. An undercover officer has Travis buy cocaine for the officer from a home across the railroad tracks from where the officer's car is parked. Travis walks to 336 Heizer to buy the cocaine and comes back with the cocaine. In his search warrant affidavit, the officer says: (1) Travis told him he was going to go to the white trailer, which was 340 Heizer; [the house next to 336 Heizer], and (2) the officer saw Travis "emerge from" 340 Heizer and return with the cocaine. The officers search 340 Heizer, find no drug evidence and, in the course of the search, handcuff the innocent occupants and shoot one of them. After the error was discovered, the officer recorded over one recording of his critical conversation with Travis and lost the other. The occupants sue on the grounds the officer made knowing, or reckless, false statements in his affidavit.

The 10th finds that undisputed evidence established a prima facie case that the officer objectively believed Travis went to 340 Heizer, because it was possible the officer couldn't see very well where Travis went, given the presence of train cars, and Travis went past 340 Heizer on his way back to the officer. The 10th also found the plaintiffs failed to produce specific evidence of knowing or reckless disregard for the truth because: (1) the fact that Travis testified he never indicated he was going into 340 Heizer and actually went into 336 Heizer only showed the officer misunderstood Travis and mistook which trailer Travis exited; (2) the failure to preserve the recordings only showed negligence, not that the officer had a culpable state of mind; and (3) the deposition testimony of the cooperating witness, who was with the officer during the transaction, that she saw Travis enter 336 Heizer and told the officer so, was not properly part of the appeal record [the officer only belatedly acknowledged he knew the identity of the confidential informant, delaying the plaintiff's deposition of her]. The 10th concluded the officer's carelessness was "deplorable" but did not establish a Fourth Amendment violation.

One judge dissented, concluding the fact that Travis did not enter 340 Heizer contradicted the officer's claims that Travis had told the officer he was going to 340 Heizer and that the officer saw Travis "emerge" from 340 Heizer. Judge Hartz added it would be reasonable for a jury to infer that it was highly unlikely the destruction and/or misplacement of multiple tapes was due to sloppiness, rather than misconduct.