Dawson v. City of Seattle , 435 F.3d 1054 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRI L. DAWSON; DAVID EMRY; 
BYRON FOLTZ; SHELLY N. SOGGA,
individuals,
Plaintiffs-Appellants,
v.
CITY OF SEATTLE, a municipal
corporation; GIL KERLIKOWSKE,
City of Seattle Chief of Police, in
his official capacity; KING COUNTY,
WASHINGTON; ALONZO L. PLOUGH, No. 03-35858
Director, Seattle-King County
Department of Public Health, in  D.C. No.
CV-02-01046-RSL
his official capacity; PERRY LEE,
Health and Environmental OPINION
Investigator II, Seattle-King
County Department of Public
Health, in his official and
individual capacity; BILL LASBY,
Health and Environmental
Investigator IV, Seattle-King
County Department of Public
Health, in his official and
individual capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
February 17, 2005—Seattle, Washington
927
928 DAWSON v. CITY OF SEATTLE
Filed January 24, 2006
Before: Betty Binns Fletcher, Ronald M. Gould,
Circuit Judges, and Samuel P. King,* District Judge.
Opinion by Judge Gould;
Concurrence by Judge B. Fletcher
*The Honorable Samuel P. King, Senior United States District Judge
for the District of Hawaii, sitting by designation.
DAWSON v. CITY OF SEATTLE 931
COUNSEL
Jose F. Vera, Seattle, Washington; Margaret M. Boyle, Seat-
tle, Washington, for the plaintiffs-appellants.
932 DAWSON v. CITY OF SEATTLE
Linda M. Gallagher, Senior Deputy Prosecuting Attorney,
Seattle, Washington; Heather L. Carr, Stafford Frey Cooper,
Seattle, Washington, for the defendants-appellees.
OPINION
GOULD, Circuit Judge:
Plaintiffs-Appellants Jerri L. Dawson, David Emry, Byron
Foltz, and Shelly N. Sogga (Plaintiffs) appeal the district
court’s orders denying their motion for summary judgment
and granting summary judgment to the defendants: Alonzo
Plough, Bill Lasby, Perry Lee, King County, Gil Kerli-
kowske, and the City of Seattle (Defendants), thereby extin-
guishing Plaintiffs’ 42 U.S.C. § 1983 claims.1 Plaintiffs at
pertinent times were tenants of boardinghouses inspected by
public health officials and secured by Seattle police. Defen-
dants Plough, Lasby, and Lee at pertinent times were employ-
ees of the Seattle-King County Department of Public Health.
Defendant Kerlikowske was Chief of Police for the City of
Seattle during the events underlying this case.
Plaintiffs argue that the district court erred by granting
Defendants’ motions for summary judgment and that Plain-
tiffs are entitled to judgment as a matter of law because the
search underlying this case violated the Fourth Amendment;
because King County’s failure to teach its public health
inspectors a constitutionally proper procedure to obtain and
1
This matter came before the district court on cross-motions of Plaintiffs
and of Defendants each seeking summary judgment. On this appeal, Plain-
tiffs argue that they were entitled to prevail on the undisputed facts. As a
general matter, we agree that the material facts are not in dispute. How-
ever, because the district court granted Defendants’ motions, we consider
the facts in the light most favorable to Plaintiffs to the extent there is any
factual dispute. See United States v. City of Tacoma, 332 F.3d 574, 578
(9th Cir. 2003).
DAWSON v. CITY OF SEATTLE 933
execute search warrants caused the allegedly unconstitutional
search; because, during the search, Plaintiffs were detained by
the Seattle police unreasonably and thus unconstitutionally;
and because the City of Seattle’s custom or policy of detain-
ing a building’s occupants pending a police search caused the
allegedly unconstitutional detention. Further, Plaintiffs argue
that if they are not entitled to judgment as a matter of law,
there is a genuine issue of material fact that would preclude
summary judgment whether their detention pending search
was reasonable. Finally, Plaintiffs contend that the district
court abused its discretion in awarding costs to Defendants.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
On August 8, 1999, Terminix, a pest control company, dis-
patched Richard Coppock to inspect two Seattle boarding-
houses, located at 6418 and 6420 Brooklyn Avenue NE, for
ants and fleas. Coppock inspected all of the occupied board-
ers’ rooms, the kitchens, the basements, as well as several
sheds and a shack located in the backyards. During his inspec-
tion, Coppock observed fleas, maggots, ants, sal bugs, ear-
wigs, German roaches, rat urine, and rat feces throughout both
houses. He noted that many of the doors inside the boarding-
houses fit too loosely in their frames and, as a result, rats or
other pests could pass freely from room to room. Coppock
also observed rotting food, used food wrappers, garbage, and
piles of dirty clothing inside many of the boarders’ rooms. In
the backyards, Coppock saw piles of wood, junk, and an auto-
mobile raised on blocks. In Coppock’s opinion, these condi-
tions invited rodents, particularly rats, to infest the
boardinghouses. In his professional judgment, the rotting food
in both houses would attract rats, and the piles of debris, both
inside and outside the houses, provided sites in which they
could nest. Although Coppock could not determine whether
the properties were then infested because rats are nocturnal
and he inspected the properties during the day, Coppock con-
cluded that “[t]hese two properties were the worst examples
934 DAWSON v. CITY OF SEATTLE
of rodent and insect infestation and rodent harborage I had
ever seen in a residential setting.” During the inspection, the
building manager, Todd Ade, who appeared drunk to Cop-
pock, bragged that his operation of these boardinghouses was
“free money.” Concerned that the tenants were living in filthy
and potentially unhealthy conditions, Coppock reported his
observations and views to Sandra Watson, an Assistant City
Attorney; it was the first time that he had ever made such a
report.
Watson verified that Coppock was a licensed pest extermi-
nator, that he had inspected the boardinghouses for Terminix,
and that his allegations were based on personal observations.
Watson organized a meeting with representatives from the
City of Seattle and King County agencies that had jurisdiction
over the city and county ordinance and code violations
described by Coppock, including the Seattle-King County
Department of Public Health (DPH). Two DPH Health and
Environmental Investigators, Bill Lasby and Perry Lee,
responded to Coppock’s complaint by visiting the properties
and requesting Mr. Ade’s permission to inspect them. Mr.
Ade refused to let Lasby and Lee enter, and Ade told them to
“get a search warrant” if they wanted to search either prop-
erty. Unable to search inside, Lasby and Lee proceeded to
examine the exterior of the two boardinghouses. Although
Lasby and Lee observed structural damage to both houses, as
well as “accumulated debris in plastic bags and overgrowth
providing rodent harborage,” they could neither verify nor
disconfirm Coppock’s allegations based on their external
inspection.
Lasby and Lee concluded that their observations were suffi-
ciently corroborative of Coppock’s allegations to justify fur-
ther investigation, so they sought a search warrant. Based on
declarations submitted by Coppock and Lasby,2 the magistrate
2
The application for warrants included declarations of Coppock, Lasby,
and Lee. The declaration of Lee was almost identical to that of Lasby, and
in approving the inspection warrants the magistrate judge indicated reli-
ance on the Coppock and Lasby declarations.
DAWSON v. CITY OF SEATTLE 935
judge issued two inspection warrants authorizing DPH to
search the houses located at 6418 and 6420 Brooklyn Avenue
NE for evidence of rodent infestation. Specifically, the war-
rants authorized DPH to:
[I]nspect the exterior, including but not limited to,
common areas, yards, crawlspaces, porches, base-
ments, attic and any out buildings, [and] appliances
on the premises, specifically including inside the
shack in the rear yard of the property that serves as
a living unit.
IT IS FURTHER ORDERED that you search
inside the premises in areas where violations may
exist, including but not limited to any individual
dwelling units or apartments or rooms or other hous-
ing units that may exist inside the main building,
cabinets, closets, under furniture, inside furniture,
inside appliances, in common areas, storage spaces,
basements, and attics.
The warrants ordered DPH to search for and to seize “evi-
dence of violations of the Seattle Municipal Health Code . . .
including photographs and any other evidence of filth, debris,
rodent or insect infestation.” The warrants authorized DPH to
“obtain whatever assistance is necessary and proper under the
circumstances.”
DPH asked the Seattle Police Department to help execute
the warrants “to protect the safety of [DPH] staff” during the
search. DPH and the police were concerned that Ade might
resist the search, given his previous refusal to admit Lasby
and Lee. DPH and the police were also concerned because
these boardinghouses were owned by Hugh Sisley, whose
associate, Keith Gilbert, previously had threatened DPH
employees during inspections of other Sisley properties. In
light of Gilbert’s violent criminal history, the police and DPH
936 DAWSON v. CITY OF SEATTLE
considered the possibility that Gilbert might try to disrupt the
inspection, or even assault a member of the inspection team.
On the morning of the inspection, DPH decided to search
the houses sequentially, beginning with the house located at
6418 Brooklyn Ave. NE, because there were not enough
police officers present to protect two inspection teams. Before
DPH began to search the house located at 6418 Brooklyn
Ave. NE, several Seattle police officers, including some
members of the Anti-Crime Team, secured the house. After
DPH completed the first inspection, police officers secured
the other boardinghouse and DPH inspected it. Before both
inspections, police officers gathered each building’s tenants in
one location, gave them copies of the inspection warrants, and
told them why DPH was inspecting the houses.
When DPH and the police arrived, they approached Ade
first and informed Ade that DPH had a warrant to inspect the
boardinghouses for evidence of rat infestation. In his deposi-
tion supporting Plaintiff’s opposition to summary judgment,
Ade testified that when DPH and the police presented the
inspection warrants to him, they did not give Ade time to read
the warrants, saying that Ade would have time to read the
warrants later. Although the officers’ guns were in their hol-
sters, the holster straps were “unsnapped.”
According to Ade, the officers ordered Ade to accompany
them and to unlock doors inside the house located at 6418
Brooklyn Ave., NE. The officers threatened to break down the
doors if Ade did not comply. Ade testified that as the police
officers secured the boardinghouse located at 6418 Brooklyn
Ave NE, the officers drew their weapons, frisked the tenants,
and “scream[ed] at them, ‘Get up, get up, search warrant, get
out of your room,’ and stuff.” But Ade also testified that
“[Ade] didn’t see [police officers], you know, ransacking peo-
ple’s rooms like they did.” Defense counsel asked Ade
whether he concluded that police officers searched his ten-
DAWSON v. CITY OF SEATTLE 937
ants’ rooms “based on what [Ade] saw after the fact,” to
which Ade answered “Yes.”
After the police secured the boardinghouse located at 6418
Brooklyn Ave. NE, and during the inspection, which lasted
approximately two hours, the police detained the building’s
tenants, including plaintiffs Sogga and Emry, in a secure
room. Officer Bauer, who helped secure the boardinghouses,
testified that the officers selected the room in which the offi-
cers held the tenants because “it was the only room that didn’t
have garbage in it. It was empty and it was big enough to —
The other rooms were very, very tiny and this was the biggest
space in the house.”
In support of Plaintiffs’ motion for summary judgment,
plaintiff Emry testified by declaration that he woke up when
he heard police officers “pounding” on the door to his room
and that two police officers detained Emry as he exited his
room in order “to pat me down against the wall and ask[ ] me
about drugs and weapons.” According to Emry, the police
officers refused to let Emry drink a cup of coffee or smoke a
cigarette. Instead, they “immediately” took Emry to the room
in which the police were detaining the other tenants, where
officers gave Emry a copy of the search warrant and asked
Emry an unspecified “series of questions.” Emry also testified
that an officer in the detention room told Emry, Sogga, and
the other tenants in the room, that they could not smoke
unless they were “handcuffed to the front porch” and that they
could “only go to the bathroom with a police escort.” During
Emry’s deposition, which Defendants offered in support of
summary judgment, Emry testified that he concluded that
Seattle police searched his room because “[a]s I was being
told [sic] whether or not I had drugs or weapons, the [officer]
did a visual kind of glance over into my room.” Defense
counsel asked Emry whether he had any reason to believe that
officers entered Emry’s room or searched Emry’s belongings,
to which Emry responded “No, I guess not.”
938 DAWSON v. CITY OF SEATTLE
Plaintiff Sogga testified by declaration that she woke up
when she heard the police make a “loud noise” entering the
house, and that a police officer directed her to the detention
room as soon as he saw her, at which point an officer gave
Sogga a copy of the inspection warrant. Sogga also testified
that “[a]n individual associated with the SPD took my infor-
mation and entered it into a computer device.” According to
Sogga’s testimony, about ninety minutes into the search, a
police officer retrieved Sogga from the detention room and
took her into the basement, where her room was located. An
officer told “Sogga” that he had found drug paraphernalia in
her room. In his deposition, which Defendants offered in sup-
port of summary judgment, Officer Carl Zylak, who helped
secure the boardinghouse at 6418 Brooklyn Ave. NE, testified
that: “Upon completion of searching the residence, I observed
what appeared to be a ziplock baggie of suspected magic
mushrooms in the room of Tenant Sogga . . . .” Zylack also
testified that “[t]he magic mushrooms were seen in plain
view.” During her deposition, which Defendants offered in
support of summary judgment, Sogga confirmed that there
were magic mushrooms and drug paraphernalia in her room
on the day of the inspection. Sogga testified that the mush-
rooms “were in a silver container on the table . . . .” The
record does not indicate whether Sogga testified that the con-
tainer was covered.
An officer placed Sogga under arrest “and read [Sogga her]
rights.” Sogga testified that police officers questioned her
about what was in her room and that they referred to informa-
tion contained in her “personal papers.” Sogga also testified
that: “The SPD Officers then told [sic] that I needed to sign
a consent to search form for my room or I would go to jail.
I asked if I could talk to a lawyer and they told [sic] I could
talk to one from jail.” Sogga signed the consent form and the
police returned her to the detention room. When Sogga
returned to her room after the tenants were released twenty
minutes later, Sogga testified, it was “clear” that officers “had
DAWSON v. CITY OF SEATTLE 939
thoroughly searched my entire room and contents,” including
an envelope containing “intimate photos” of Sogga.
DPH then searched the house located at 6420 Brooklyn
Avenue NE. The police detained its tenants, including plain-
tiff Dawson,3 in the backyard for the duration of the search,
about forty minutes. Dawson testified by declaration that she
tried to enter the boardinghouse located at 6418 Brooklyn
Avenue NE while DPH was inspecting it, but the police
would not let her enter. Dawson was “expecting the search”
more than two hours after the inspection began at 6418
Brooklyn Ave NE, when police officers knocked on her door,
“handed me a copy of the search warrant, asked if I had any
drugs or weapons in my room and told me I had to go to the
back of 6420.” The officers refused to allow Dawson to
remain in the room to observe DPH during the inspection.
Dawson also testified that she “did not even get a chance to
put on any shoes.” When she reached the back yard, an officer
asked Dawson for her identification, which was still in Daw-
son’s room. An officer escorted Dawson back to her room, at
which point “[Dawson] saw two SPD Officers apparently
searching it.” One officer was looking into Dawson’s closet,
while the other was “standing next to the table that contained
[Dawson’s] personal papers, jewelry making materials, and
medication.” The officer allowed Dawson to retrieve her iden-
tification, but not her shoes, even though, Dawson testified,
there was broken glass “around the patio.” The officers did
not allow Dawson to walk to the corner fruit stand during the
remainder of the inspection, which lasted “approximately one
hour.” Dawson testified that after the police released her, she
returned to her room and found that “all my personal papers
had been moved and arranged in a manner different than how
I had them organized. The medication on my table had also
been rearranged.” Later, during Dawson’s deposition, which
Defendants offered in support of summary judgment, Dawson
3
Plaintiff Foltz lived in the house located at 6420 Brooklyn Avenue NE,
but he was not home at the time of the search, and he was not detained.
940 DAWSON v. CITY OF SEATTLE
testified that she did not observe a police officer move her
papers and that she does not know who moved them.
Although officers accompanied DPH during the searches to
provide security and there was testimony that the officers con-
ducted some searches of tenants’ rooms incidental to provid-
ing security, the police did not conduct the inspection for
rodent infestation. None of the residents was injured or trans-
ported from the boardinghouses to a police station. Neither
search yielded much evidence that the boardinghouses were
then infested by rats.
Sogga and Emry, residents of units at 6418, and Dawson
and Foltz, residents of units at 6420, sought damages in this
action under 42 U.S.C. § 1983, alleging that the search of
their homes was unconstitutional because Lasby and Lee
lacked probable cause when they applied for the inspection
warrants and because the warrants were too broad. Plaintiffs
also sought damages from King County for allegedly failing
to train its employees regarding the proper standards for
obtaining a search warrant. Finally, Plaintiffs sought damages
from the City of Seattle for its alleged custom or policy that
caused Plaintiffs to be unconstitutionally detained during the
inspection.
On cross-motions for summary judgment, the district court
dismissed Plaintiffs’ suit against Lasby and Lee. The court
concluded that probable cause existed to support a warrant to
inspect the houses located at 6418 and 6420 Brooklyn Avenue
NE for violations of the Seattle Municipal Code, so Plaintiffs
were not deprived of any constitutional right. The district
court also dismissed Plaintiffs’ suit against King County
because the court concluded that Plaintiffs were not deprived
of any constitutional right. Finally, the district court dismissed
Plaintiffs’ suit against the City of Seattle because the court
concluded that the detentions of Dawson, Sogga, and Emry
were not unreasonable under the totality of the circumstances.4
4
Because Foltz was not present during the inspection search, the district
court concluded that he could not assert an unreasonable seizure claim.
DAWSON v. CITY OF SEATTLE 941
Plaintiffs appeal the dismissal of their claims on summary
judgment. The district court awarded costs to Defendants,
which Plaintiffs also now challenge.
II
We must decide whether health investigators Lasby and
Lee, and by extension King County, violated Plaintiffs’
Fourth Amendment rights by seeking and executing a warrant
to search for evidence of rodent infestation and by detaining
Plaintiffs during the search. We also must decide whether the
City of Seattle is liable as a municipality for having a policy
or custom that caused Plaintiffs to be detained unreasonably
by the City of Seattle’s police during the search of Plaintiffs’
residences, in violation of the Fourth and Fourteenth Amend-
ments. Finally, we must decide whether the district court
abused its discretion in awarding costs to Defendants.
A.
To establish a violation of 42 U.S.C. § 1983, Plaintiffs
must prove that Lasby and Lee: (1) acted under color of state
law, and (2) deprived Plaintiffs of their constitutional rights.
West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiffs argue that
Lasby and Lee violated their constitutional rights by execut-
ing impermissibly overbroad warrants unsupported by proba-
ble cause. The district court granted summary judgment to
Lasby and Lee on the grounds that the inspection warrants
met the probable cause standard for administrative warrants,
that the warrants were not overbroad, and that Lasby and Lee
were entitled to qualified immunity. Although we disagree
with the district court that the inspection warrants should be
reviewed under the less rigorous standard applicable to
administrative warrants, we agree with the district court’s ulti-
mate conclusion that the warrants were supported by probable
cause and were not overbroad.
[1] Seattle Municipal Code § 10.34 was enacted to prevent
“the spread of infectious and contagious diseases and specifi-
942 DAWSON v. CITY OF SEATTLE
cally the disease known as the ‘Bubonic Plague’ by rats, mice,
and other rodents.” Seattle Municipal Code § 10.34.010
(2004). The Code states that “[a]ll premises and places shall
be maintained free from rats, mice, and other rodents; and it
shall be unlawful for the owner or occupant thereof to fail to
take such reasonable preventive and remedial measures for
such purpose as shall be prescribed by the Director of Public
Health.” Id. § 10.34.030. These sections of the Code are crim-
inal ordinances, a violation of which may be punished by a
fine not to exceed $300, imprisonment not to exceed ninety
days, or both. See Seattle Municipal Code § 10.34.040.
Because DPH obtained criminal warrants to search the board-
inghouses for violations of the Code, it was necessary for
probable cause to support the warrants. U.S. Const. amend. IV
(“[N]o Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”).
a. Probable Cause
[2] We review a magistrate judge’s probable cause determi-
nation for clear error. United States v. Wong, 334 F.3d 831,
835-36 (9th Cir. 2003); United States v. Hay, 231 F.3d 630,
634 n.4 (9th Cir. 2000). We will not invalidate a search war-
rant “if the magistrate judge had a ‘substantial basis’ for con-
cluding that the supporting affidavit established probable
cause.” United States v. Clark, 31 F.3d 831, 834 (9th Cir.
1994); Greenstreet v. County of San Bernardino, 41 F.3d
1306, 1309 (9th Cir. 1994). In this context, probable cause
exists if “there is a fair probability that contraband or evi-
dence of a crime will be found in a particular place,” based
on the totality of circumstances. Illinois v. Gates, 462 U.S.
213, 238 (1983). The probable cause standard:
[M]erely requires that the facts available to the offi-
cer would “warrant a man of reasonable caution in
the belief” that certain items may be contraband or
stolen property or useful as evidence of a crime; it
DAWSON v. CITY OF SEATTLE 943
does not demand any showing that such a belief be
correct or more likely true than false.
Texas v. Brown, 460 U.S. 730, 742 (1983) (citation omitted);
Maryland v. Pringle, 540 U.S. 366, 370-71 (2003) (“[T]he
probable-cause standard is a practical, nontechnical concep-
tion that deals with the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act.” (internal quotation marks omitted)).
[3] Here, Coppock’s and Lasby’s declarations created a
“fair probability” that evidence of a crime would be found in
6418 and 6420 Brooklyn Avenue NE. Coppock’s declaration
suggested that these two houses deserved to be characterized
as rat traps. He observed “rotting food,” “rat urine,” “rat
feces,” roaches and other bugs, as well as structural infirmi-
ties in both houses that would allow rats to enter them and to
move about freely. He also observed piles of junk and debris
located close to both houses in which rats could nest.
[4] The evidence considered by the magistrate, viewed as
a whole, would permit a reasonable person to believe that a
search of these houses had a fair probability of revealing evi-
dence of serious Health and Safety Code violations. We hold
that the warrants were supported by probable cause.
Plaintiffs urge, however, that Lasby’s responses to their
interrogatories indicated that he believed he was searching
only for a violation of Seattle Municipal Code § 10.34.030.5
Plaintiffs argue that Lasby could not have had probable cause
to search the boardinghouses because, under the theory
asserted by Plaintiffs, they could not have violated
§ 10.34.030, no matter what condition the boardinghouses
5
Interrogatory No. 10 stated in part: “Identify the specific Seattle
Municipal Health Code (SMC) ordinance and subsection you had probable
cause to believe was being violated at 6418 Brooklyn Avenue N.E. on
September 28, 1999 . . . .” Lasby responded by citing SMC § 10.34.030.
944 DAWSON v. CITY OF SEATTLE
were in, unless Plaintiffs expressly disobeyed a preventive or
remedial order from the Director of Public Health.
This argument fails. As the district court pointed out, these
warrants generally authorized DPH to search for evidence of
rodent infestation. Lasby’s statement, made during discovery,
years after the searches, cannot limit retroactively the justifi-
cations for these warrants that Watson, Lasby and Lee pre-
sented to the magistrate. See United States v. Huguez-Ibarra,
954 F.2d 546, 552 (9th Cir. 1992) (“In reviewing the magis-
trate’s decision that probable cause existed, we are limited to
the information contained within the four corners of the affi-
davits supporting the application for the search warrant.”);
United States v. Brown, 455 F.2d 1201, 1204 (9th Cir. 1972)
(“In considering the validity of the search warrant, we are
limited to the information and circumstances that were avail-
able to the magistrate at the time the warrant was issued.”).
Plaintiffs’ argument misinterprets Seattle Municipal Code
§ 10.34.030, which states: “[a]ll premises and places shall be
maintained free from rats, mice, and other rodents; and it shall
be unlawful for the owner or occupant thereof to fail to take
such reasonable preventive and remedial measures for such
purpose as shall be prescribed by the Director of Public
Health.” This ordinance was written in the conjunctive, and it
must be interpreted to impose distinct duties on a building’s
owners and occupants: first, to maintain the building “free
from rats, mice, and other rodents,” and second, to comply
with reasonable preventive and remedial measures issued by
the Director of Public Health. As we have held, a statute is
normally to be interpreted so that all of its words are given
meaning and not rendered superfluous. Defenders of Wildlife
v. Browner, 191 F.3d 1159, 1165 (9th Cir. 1999).
[5] Plaintiffs’ argument fails, therefore, because probable
cause existed to suspect a breach of the owner’s first pre-
scribed duty, even if there was no evidence that the owner had
breached the second. It would be incorrect for us to interpret
DAWSON v. CITY OF SEATTLE 945
this section of the City’s Health and Safety Code, which was
clearly intended to prevent the proliferation of rats and ver-
min, to allow a building to be overrun by rats until the Direc-
tor of Public Health specifically commands otherwise. Stated
another way, the ordinance prohibits maintaining premises
that are infested by rodents, a prohibition necessary to avoid
the hazards of rodent-caused plague and other serious dis-
eases, and this prohibition can be violated without a failure to
take administratively requested remedial action. Because
there was probable cause that a search of the houses located
at 6418 and 6420 Brooklyn Avenue NE would reveal evi-
dence of a crime, one that posed health hazards of potentially
epidemic proportions, the magistrate judge properly and per-
missibly issued warrants to search these properties.
b. Overbreadth
[6] A valid warrant must describe particularly the places
that officers may search and the types of items that they may
seize. United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.
1986); Clark, 31 F.3d at 836. This requirement exists to “pre-
vent[ ] general, exploratory searches and indiscriminate rum-
maging through a person’s belongings.” Spilotro, 800 F.2d at
963.
Although “[t]he description must be specific enough to
enable the person conducting the search reasonably to identify
the things authorized to be seized,” Id., we have made clear
that “[w]arrants which describe generic categories of items
are not necessarily invalid if a more precise description of the
items subject to seizure is not possible.” Id.
Applying this standard, we have invalidated a warrant that
authorized a search for “narcotic controlled substances, drug
paraphernalia, marijuana cultivation equipment, instructions,
notes, cultivation magazines, currency, documents, and
records and fruits and instrumentalities of [a] violation of
Title 21, U.S.C. § 841(a)(1).” Clark, 31 F.3d at 834. We con-
946 DAWSON v. CITY OF SEATTLE
cluded that the phrase “fruits and instrumentalities of [a] vio-
lation of Title 21, U.S.C. § 841(a)(1)” did not indicate with
sufficient particularity the items that officers could seize. And
we observed that “anything, or [sic] any nature or description,
deemed to be a fruit or instrumentality of the alleged crime
[could be seized].” Id. at 836.
Similarly, in Spilotro, we invalidated a warrant that autho-
rized a search for, among other things:
[E]vidence of violations of 18 U.S.C. § 1084, 1952,
1955, 892-894, 371, 1503, 1511, 2314, 2315, 1962-
1963, and which are or may be: (1) property that
constitutes evidence of the commission of a criminal
offense; or (2) contraband, the fruits of crime, or
things otherwise criminally possessed; or (3) prop-
erty designed or intended for use or which is or has
been used as the means of committing a criminal
offense.
800 F.2d at 961. The warrant failed to distinguish between
items that could be used lawfully and those that the govern-
ment had probable cause to believe were part of the criminal
enterprise at issue, and it “authoriz[ed] wholesale seizures of
entire categories of items not generally evidence of criminal
activity.” Id. at 964. But we explained that the government
could have cured the warrant’s facial overbreadth either by
describing the items it expected to find, or by describing the
criminal activities of which it hoped to find evidence. Id.
[7] The warrants at issue here, by contrast, did describe the
criminal activity of which the government hoped to find evi-
dence, specifically evidence of rat infestation or evidence of
living conditions so filthy as to invite such infestation. These
warrants described exhaustively the places the magistrate
judge authorized DPH to search. But more importantly, the
warrants limited the items that DPH could seize to “any evi-
dence [showing a violation of the Health and Safety Code],
DAWSON v. CITY OF SEATTLE 947
including photographs and any other evidence of filth, debris,
rodent or insect infestation.” (emphasis added). Because the
warrants specified the crime to be investigated, the specific
places to be searched, and the types of evidence to be seized,
they provided sufficient guidance to the health investigators
executing the warrant. See United States v. Kow, 58 F.3d 423,
427 (9th Cir. 1995); United States v. Meek, 366 F.3d 705, 715
(9th Cir. 2004) (concluding that a warrant listing items includ-
ing “photography equipment” and “paraphernalia used to
lower the inhibition of children” was sufficiently specific
because “all items listed in the warrant were limited to materi-
als related to ‘sexual exploitation of a child.’ ”); see also Spi-
lotro, 800 F.2d at 963 (laying out a standard to measure the
specificity of a warrant). We conclude that the warrants were
not constitutionally overbroad, and that they satisfied the
Fourth Amendment’s requirement to specify particularly the
places that officers could search and the items that they could
seize. The health investigators had sufficient guidance that
they were searching for evidence of “filth, debris, rodent or
insect infestation” as specified in the warrants, and the resi-
dents had fair notice of the object of the search.
B
[8] A municipality is liable for the constitutional torts of its
employees under § 1983 where its “failure to train amounts to
deliberate indifference to the rights of persons with whom the
[employees] come into contact.” City of Canton v. Harris, 489
U.S. 378, 388 (1989). Plaintiffs urge that Lasby and Lee
searched the boardinghouses in violation of the Fourth and
Fourteenth Amendments, and that King County is liable for
this search because the County did not teach Lasby and Lee
a constitutionally valid search and seizure method.
[9] Because we conclude that Lasby and Lee’s search did
not deprive Plaintiffs of any constitutional right, however,
Plaintiffs cannot, as a matter of law, establish a valid § 1983
948 DAWSON v. CITY OF SEATTLE
claim against King County. Flagg Bros., Inc. v. Brooks, 436
U.S. 149, 155 (1978).6
C
Plaintiffs contend that the City of Seattle is liable because
its officers, pursuant to an official policy, unreasonably
detained Plaintiffs while DPH searched the houses located at
6418 and 6420 Brooklyn Avenue NE. The district court
assumed for purposes of its analysis that the Seattle Police
Department follows a policy of detaining a building’s occu-
pants whenever officers conduct an involuntary search. None-
theless, the district court concluded that Plaintiffs’ detentions
were constitutionally permissible as a matter of law, and
granted summary judgment to Defendants. On appeal, Plain-
tiffs challenge the district court’s conclusion and assert that
their detentions were unreasonable and therefore unconstitu-
tional.
[10] The Supreme Court’s precedents, and our own, estab-
lish that the police may detain a building’s occupants while
officers execute a search warrant as long as the detention is
reasonable. Michigan v. Summers, 452 U.S. 692, 704-05
(1981) (“If the evidence that a citizen’s residence is harboring
contraband is sufficient to persuade a judicial officer that an
invasion of privacy is justified, it is constitutionally reason-
6
Alternatively, even if we were to assume that the search was unconsti-
tutional, Plaintiffs did not offer any evidence that King County’s alleged
failure to train Lasby and Lee caused the assumed unconstitutional search.
See Canton, 489 U.S. at 390 (requiring that, as a prerequisite for municipal
liability, the failure to train “actually causes injury”). Coppock informed
the city and county that the conditions inside the houses located at 6418
and 6420 Brooklyn Ave. NE suggested that they were infested with rats
or had conditions that would cause infestation. Lasby and Lee responded
by consulting with an Assistant City Attorney and then seeking a warrant
from a judicial officer. Plaintiffs presented no evidence that Lasby and Lee
would have acted differently if King County had provided more particular-
ized training on the Fourth Amendment and search procedures. See id.
DAWSON v. CITY OF SEATTLE 949
able to require that citizen to remain while officers of the law
execute a valid warrant to search his home.”); Ganwich v.
Knapp, 319 F.3d 1115, 1120 (9th Cir. 2003) (concluding that
it was reasonable to detain a business’s employees while offi-
cers searched the business’s premises pursuant to a warrant).
To determine whether a detention incident to a search is con-
stitutionally reasonable, we balance the law enforcement
interests served by the detention against the public’s privacy
interests. Ganwich, 319 F.3d at 1120. Since Summers, we
have recognized that detaining a building’s occupants serves
at least three law enforcement interests: first, detention pre-
vents a suspect from fleeing before the police discover contra-
band; second, detention minimizes the risk that an officer or
an occupant might be harmed during the search; and third,
detention often expedites a search. Summers, 452 U.S. at 702-
03; Ganwich, 319 F.3d at 1120.
[11] Whatever previously may have been thought to bear
on the reasonableness of a detention incidental to a search, the
United States Supreme Court recently held that “[a]n officer’s
authority to detain incident to a search is categorical; it does
not depend on the ‘quantum of proof justifying detention or
the extent of the intrusion to be imposed by the seizure.’ ”
Muehler v. Mena, 125 S. Ct. 1465, 1470 (2005) (emphasis
added). We interpret the Supreme Court’s language to mean
that the duration of a detention may be coextensive with the
period of a search, and require no further justification. The
police do not, however, have unfettered authority to detain a
building’s occupants in any way they see fit. Id. Muehler con-
firms an officer’s authority to detain a building’s occupants
during a search so long as the officer conducts the detention
in a reasonable manner. Thus, the Seattle police could permis-
sibly detain Plaintiffs while DPH searched the boarding-
houses for evidence of rat infestation.
Plaintiffs, however, contend that Muehler and Summers
apply only to searches for contraband, rather than searches for
evidence, like the search underlying this case. We reject this
950 DAWSON v. CITY OF SEATTLE
argument for two reasons. First, in Ganwich, we applied Sum-
mers in the context of a search for evidence of a criminal vio-
lation, that of consumer fraud, not a search for contraband.
Ganwich, 319 F.3d at 1120. Ganwich involved a search for
evidence of conduct by a business that was deceptive or unfair
to consumers; contraband was not at issue in the search.
Plaintiffs’ argument is inconsistent with our Circuit law, and
our panel is not at liberty here to overrule a prior decision of
this Court. United States v. Rodriguez-Lara, 421 F.3d 932,
943 (9th Cir. 2005) (noting that “a three-judge panel may not
overrule [9th Circuit precedent] absent intervening Supreme
Court or en banc authority”). Also, Muehler itself involved a
search for both evidence and contraband, not solely a search
for contraband. Muehler, 125 S. Ct. at 1468 (“Muehler
obtained a search warrant . . . that authorized a broad search
of the house and premises for, among other things, deadly
weapons and evidence of gang membership.”). Thus, the doc-
trine of Michigan v. Summers, permitting police officers to
detain individuals during a search, and the principle of Mueh-
ler, holding that the authority to detain incident to search is
categorical, apply to all searches upon probable cause, not just
to searches for contraband.
[12] Even apart from Muehler’s endorsement of an offi-
cer’s categorical authority to detain a building’s occupants
while the officer searches it, here the law enforcement inter-
ests in safely and effectively conducting these searches of the
boardinghouses for rodent infestation amply justified the
police to detain Plaintiffs during the search. See Summers,
452 U.S. at 705. These officers were conducting a search for
a serious public health hazard, against the property manager’s
will, pursuant to a valid warrant. The occupants conceivably
might have wanted to help the DPH inspectors to identify
health code violations in their own interests. But they also
might have fled, rendering themselves unavailable to answer
questions pertinent to the search. Or they may have impaired
the search rather than assisted it, under the mistaken assump-
DAWSON v. CITY OF SEATTLE 951
tion that the police were there to investigate Plaintiffs rather
than the owner and property manager.7
The owner of these boardinghouses was associated with a
man who not only had a violent criminal history, but who pre-
viously had threatened DPH employees concerning the offi-
cials’ inspections of the landlord’s properties. Also, the police
did not know exactly how many people were inside the board-
inghouses, or the identities of those who were living there or
what other visitors might pose dangers. Allowing an unknown
number of unidentified people to move about unsupervised
during an involuntary inspection would dramatically increase
the likelihood that an occupant could injure or kill an officer,
or that an officer might mistakenly injure an occupant. As the
Supreme Court said in Summers, “[t]he risk of harm to both
the police and the occupants is minimized if the officers rou-
tinely exercise unquestioned command of the situation.” Sum-
mers, 452 U.S. at 702-03. Moreover, this salient principle is
only reinforced by Muehler’s explanation that the authority to
detain pending search is “categorical.” Muehler, 125 S. Ct. at
1470.
[13] We conclude that the detaining of Plaintiffs and the
manner of Plaintiffs’ detentions were constitutionally permissi-
ble.8 Resolving all factual disputes in favor of the nonmoving
7
Plaintiffs contend that Defendants overstated the officers’ and health
investigators’ safety concerns, but Plaintiffs submit no evidence to counter
the testimony submitted by Defendants that the officers were concerned
for their safety because they were conducting an involuntary search of two
buildings housing an unknown number of residents, with a possibly hostile
landlord. At deposition, Officer Hope Bauer testified that the police
detained Plaintiffs to ensure “officer safety” in light of “a history of prob-
lems with associates of the landlord,” specifically Keith Gilbert. Bauer tes-
tified that “[Gilbert] would be in the vicinity or at the inspections of any
house in the area that belonged to Hugh Sisley and I was told he had
caused problems and either attempted or assaulted one of the inspectors.”
Officer Carl Zylak also testified that the officers detained Plaintiffs “for
safety reasons.”
8
On appeal, Plaintiffs have contended that their detentions violated the
Fourth Amendment. We address whether the Seattle police had authority
952 DAWSON v. CITY OF SEATTLE
party, as we must when we review an order granting summary
judgment, the record does not indicate a genuine issue of
material fact whether the detaining of Plaintiffs and its man-
ner were constitutionally impermissible. In Muehler, the
Supreme Court held that “Mena’s detention in handcuffs for
the length of the search was consistent with our opinion in
Michigan v. Summers, and that the officers’ questioning dur-
ing that detention did not violate her Fourth Amendment
rights.” Muehler, 125 S. Ct. at 1468 (citations omitted). In
Muehler, an agent of the Immigration and Naturalization Ser-
vice (INS) accompanied the police officers who detained
Mena. Id. The INS agent asked Mena and other detainees sev-
eral questions, including her immigration status, name, and
place of birth; the agent also asked each detainee to produce
immigration documentation. Id. The Supreme Court made
clear in Muehler that questioning a person whom the police
detain incident to a building search does not require indepen-
dent probable cause because “mere police questioning does
not constitute a seizure.” Id. at 1471 (quoting Florida v.
Bostick, 501 U.S. 429, 434 (1991)). The Supreme Court
rejected the notion that questioning a detainee “constitute[s]
a discrete Fourth Amendment event,” unless the questioning
prolongs the detention. Id.
to detain Plaintiffs pending search of the boardinghouses, and whether the
manner of that detention was constitutionally reasonable. We do not here
assess the same issues that might be considered had a search of a tenant’s
room yielded evidence that was later the subject of a motion to suppress
in a criminal case. Apart from the decision to detain and the manner of
detention, other police conduct that might raise a constitutional question
in an appropriate case is not before us.
Moreover, even if we could consider police conduct unrelated to the
manner of detention, Appellants’ claims of police misconduct dismissed
on summary judgment were claims for damages against the City of Seattle
and the Chief of Police, not claims against the individual police officers
who had engaged in the alleged misconduct. Plaintiffs have not shown that
there was a policy or practice of the City of Seattle that caused any viola-
tion of right by individual officers. See Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 691-694 (1978).
DAWSON v. CITY OF SEATTLE 953
[14] The Supreme Court also declared: “Inherent in Sum-
mers’ authorization to detain an occupant of the place to be
searched is the authority to use reasonable force to effectuate
the detention.” Id. at 1470. In Muehler, a SWAT team, wear-
ing helmets and black vests, woke Mena from her bed and
placed her in handcuffs at gunpoint. Id. at 1468. Turning the
focus back to the appeal before us, the manner in which the
Seattle police secured the boardinghouses was not more intru-
sive than the manner in which the police entered Mena’s resi-
dence, and police had reason to be concerned about safety. In
Muehler the police were investigating a driveby shooting and
the police were concerned that they might encounter one or
more armed gang members. Here, there were parallel con-
cerns about possible violence because the Seattle police had
reason to think that Keith Gilbert might try to prevent the
DPH inspection by violently resisting or attacking the DPH
inspection team or their police escorts. Under these circum-
stances, it was reasonable for the police to enter the boarding-
houses aggressively and drawing their sidearms, as was
indicated by Plaintiffs’ testimony, would not render the deten-
tion unreasonable. Further, it was not unreasonable immedi-
ately to gather and detain Plaintiffs and the other tenants, even
when we credit Plaintiffs’ testimony that some officers yelled
at Plaintiffs during the process. Nor is the manner of detention
rendered unreasonable if police did not permit tenants to
pause for cigarettes or coffee; to the contrary, it was reason-
able to assemble tenants in a suitable place at the earliest
practical opportunity in order to facilitate the inspection and
its completion. Particularly in light of the Supreme Court’s
recent guidance in Muehler, Plaintiffs have not identified a
genuine issue of material fact whether the decision to detain
Plaintiffs and the manner of the Seattle police officers’ entry
into the boardinghouse located at 6418 Brooklyn Ave. NE
was constitutionally impermissible. Nor have Plaintiffs raised
a genuine material factual issue about the manner of the offi-
cers’ entry into the boardinghouse located at 6420 Brooklyn
Ave. NE, because nothing in the record suggests that the
954 DAWSON v. CITY OF SEATTLE
police entered the boardinghouse at 6420 Brooklyn Ave. NE
in an improper way.
The manner in which the police officers detained Plaintiffs
was reasonable under Ganwich as well. In Ganwich, we con-
cluded that “although it was reasonable to detain the plaintiffs
on the Ear-Tec premises during the search of the building, it
was not at all reasonable to condition the plaintiffs’ release on
their submission to interrogation.” Ganwich v. Knapp, 319
F.3d 1115, 1120 (9th Cir. 2003). The police officers who
detained Ganwich and the other Ear-Tec employees “told the
plaintiffs . . . that they would not be released until they sub-
mitted to individual interrogations. Id. at 1121. But here,
nothing in the record suggests that the police conditioned
Plaintiffs’ release from detention on Plaintiffs’ willingness to
submit to an interrogation. All of Plaintiffs’ declarations indi-
cate that the police released Plaintiffs as soon as DPH finished
inspecting the boardinghouses.
[15] Also, the questions the officers allegedly asked Plain-
tiffs were related to a primary justification for detaining Plain-
tiffs, which was to secure the safety of the inspecting health
officials and the police officers. The record indicates that the
officers questioned Plaintiffs as they went from room to room
in order to secure the boardinghouses. Given the officers’
concern for their safety and the safety of DPH personnel, it
was reasonable for the officers to ask Plaintiffs whether Plain-
tiffs’ rooms contained weapons, which would pose a risk to
the officers and inspection officials; or to ask whether any of
the plaintiffs was the subject of an outstanding warrant, to
ascertain which of the detainees might pose an increased
threat of violence; or to ask whether Plaintiffs’ rooms con-
tained narcotics, which might render Plaintiffs more violent or
less likely to allow the DPH inspectors’ lawful presence.
[16] Denying Plaintiffs’ requests to smoke or to use the
bathroom unattended was also permissible. In Ganwich, “the
officers prevented the plaintiffs from leaving the waiting
DAWSON v. CITY OF SEATTLE 955
room, from going to the restroom unattended, from retrieving
their personal possessions, from making telephone calls, and
from answering the office telephone when it rang,” for
between one hour and forty-five minutes and four hours and
forty-five minutes. Id. at 1118. There, we held the police con-
duct unreasonable in part because “depriving the plaintiffs of
telephone access [was not] justified by legitimate law enforce-
ment interests for more than a fraction of the detention.” Id.
at 1123. But here, denying Plaintiffs’ requests to smoke and
to use the restroom unattended furthered the officers’ interest
in facilitating an efficient inspection by DPH personnel. In his
deposition, which Plaintiffs offered in opposition to summary
judgment, Lasby testified that DPH requested that police offi-
cers accompany DPH personnel while DPH inspected the
boardinghouses “to cover in case we missed anybody and
staff could end up in a situation where there would be an
angry confrontation so for safety and to let us concentrate on
our jobs, [police officers] accompanied us.” A tenant left uns-
upervised to use the restroom, or to smoke, could retrieve a
weapon and assault an officer or a member of the DPH team.
And once the health inspectors commenced their inspection,
if a police officer escorted a tenant, leaving an inspector
unguarded might have exposed that inspector to the risk of
attack from any angry tenant who had evaded the officers’ ini-
tial security sweep. We conclude that the officers’ decision to
deny Plaintiffs’ requests did not render the manner of Plain-
tiffs’ detentions constitutionally impermissible.
For purposes of summary judgment, we accept Dawson’s
allegation that the police would not permit her to retrieve her
shoes, even though there was glass on the floor of the area in
which the police detained her. Without more, however, we
cannot say that this fact is enough to render the manner of
Plaintiffs’ detentions constitutionally impermissible. In her
declaration, Dawson testified that she wanted to get her shoes
because there was glass around the patio “and because I
wanted to be able to walk to the corner fruit stand.” Dawson
does not allege, or offer evidence to prove, that the officers
956 DAWSON v. CITY OF SEATTLE
who detained Dawson were aware that there was broken glass
on the patio. Nor does the record suggest that the amount of
glass on the patio presented such a risk of injury to Dawson
during her detention in the backyard that it was constitution-
ally unreasonable for the police to deny Dawson’s request to
get her shoes. Allowing Dawson to retrieve her shoes might
have frustrated the DPH inspection to the extent that other
tenants might have similarly requested access to their rooms
to retrieve items that they wanted. Because there is no evi-
dence in the record to suggest that the glass on the patio cre-
ated an unreasonable risk of injury to Dawson and that the
officers were aware of that risk, we conclude that the officers’
decision to deny Dawson’s request to retrieve her shoes did
not render the manner of Plaintiffs’ detentions constitutionally
impermissible.
[17] This detention aided a lawful search conducted pursu-
ant to valid warrants supported by ample probable cause. The
officers had reason to be concerned about the health inspec-
tors’ safety and their own. The officers permissibly ques-
tioned Plaintiffs whether their rooms contained drugs or
weapons. The manner of Plaintiffs’ detentions was commen-
surate with the potential threat that not merely the tenants, but
also the landlord and his associates posed to the officers and
inspectors. And the detentions of the tenants did not last lon-
ger than necessary to conduct the search, as the police
released Plaintiffs as soon as DPH completed each search.
Nor did the police condition Plaintiffs’ release from detention
on Plaintiffs’ submission to interrogation, as did the officers
in Ganwich. Ganwich, 319 F.3d at 1122. We conclude that
Plaintiffs’ detentions were constitutionally permissible.
D
[18] We turn to the issue of costs. We review for abuse of
discretion a district court’s award of costs. Miles v. Califor-
nia, 320 F.3d 986, 988 (9th Cir. 2003). Under Federal Rule
of Civil Procedure 54(d), there is a presumption that the pre-
DAWSON v. CITY OF SEATTLE 957
vailing party will be awarded its taxable costs. Save Our Val-
ley v. Sound Transit, 335 F.3d 932, 944 (9th Cir. 2003); Fed.
R. Civ. P. 54(d)(1) (“[C]osts other than attorneys’ fees shall
be allowed as of course to the prevailing party unless the
court otherwise directs.”). To overcome this presumption, a
losing party must establish a reason to deny costs. Stanley v.
Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999). Here,
the district court awarded costs to Defendants, who prevailed.
Defendants urge that we should not reach the issue of costs
because Plaintiffs neglected to challenge the district court’s
award of costs in their Notice of Appeal. See Fed. R. App. P.
3(c)(1)(B) (“A notice of appeal . . . must designate the judg-
ment, order, or part thereof appealed from.”); see also Torres
v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988) (holding
that a court “may not waive the jurisdictional requirements of
[Fed. R. App. P.] 3 and 4, even for ‘good cause shown’ under
Rule 2, if it finds that they have not been met”); Vernon v.
Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987) (holding that
the Ninth Circuit lacks jurisdiction over appeals that give
untimely or improper notice). But our case law allows a party
to contest an award of costs on appeal even if the notice of
appeal did not raise the issue expressly. See Cal. Union Ins.
Co. v. Am. Diversified Sav. Bank, 948 F.2d 556, 567 (9th Cir.
1991) (ruling on a challenge to taxation of costs despite the
order not being mentioned in the Notice of Appeal and hold-
ing that the Notice of Appeal “from the judgment incorporates
the appeal of the denial of the motion to retax costs”). We
hold that Plaintiffs’ Notice of Appeal from the district court’s
adverse judgments incorporates Plaintiffs’ present appeal of
the district court’s decision to award costs to Defendants.
[19] Turning to the merits, Plaintiffs have not established
that the district court abused its discretion by following the
presumption raised under Federal Rule of Civil Procedure
54(d). Plaintiffs contend that the district court should not have
awarded costs to Defendants because Defendants misrepre-
sented two facts in their joint motion in limine: first that
958 DAWSON v. CITY OF SEATTLE
Defendants timely served Plaintiffs with Requests for Admis-
sion on May 8, 2003; and second, that Plaintiffs did not con-
test their obligation to respond to the Requests. In fact,
Plaintiffs did object to Defendants’ Requests because the
Requests were served on May 14, 2003, which was not
timely. Defendants have responded that while preparing their
motion in limine, Defendants relied on the date stamp indicat-
ing when Plaintiffs received a copy of the Requests, which
incorrectly read May 8, 2003. Defendants admitted an error
and explained their view of the reason for it, when Defendants
received Plaintiffs’ opposition to Defendants’ motion in
limine. We conclude that whether it may have been a mistake
or rather could be considered “misconduct,” Defendants’ con-
duct was harmless because the district court never ruled on
Defendants’ motion in limine. Under all of the circumstances
presented, we hold that the district court’s decision to award
costs to Defendants over Plaintiffs’ objection was within the
Court’s discretion. See Nat’l Info. Servs. v. TRW, Inc., 51 F.3d
1470, 1472 (9th Cir. 1999) (“A district court therefore gener-
ally must award costs unless the prevailing party is guilty of
some fault, misconduct, or default worthy of punishment.”),
overruled on other grounds by Ass’n of Mexican-American
Educators v. California, 231 F.3d 572 (9th Cir. 2000).
Thus, the district court’s conclusions regarding all of the
issues presented by this appeal are:
AFFIRMED.
B. FLETCHER, Circuit Judge, specially concurring:
Although I concur in the result reached in the majority
opinion and in sections II.A., II.B. and II.D., the opinion’s
analysis of claims against King County, I cannot concur in
section II.C. dealing with the liability of the City of Seattle.
I disagree with the majority’s reasoning in that section of the
DAWSON v. CITY OF SEATTLE 959
opinion and offer an alternate, taking as true the Plaintiffs’
(non-moving parties’) assertion of the facts, as the basis for
deciding these claims. The police officers’ search of boarders’
rooms was not reasonable within the meanings of Ganwich
and Muehler. However, since the suit is against the City, not
the individual officers, Monell v. Department of Social Ser-
vices, 436 U.S. 658 (1978), controls. Plaintiffs have not
shown that the Seattle Police Department’s policies or train-
ing caused the alleged deprivation of their civil rights.
In the majority opinion, the preamble to Section II accu-
rately reflects the issues that we must decide in this appeal. As
to the City of Seattle, the issue is “whether the City of Seattle
is liable as a municipality for having a policy or custom that
caused Plaintiffs to be detained unreasonably by the City of
Seattle’s police during the search of Plaintiffs’ residences, in
violation of the Fourth and Fourteenth Amendments.” Major-
ity at 941 (emphasis added). We need not determine, as the
majority opinion does, whether or not the conduct of the
police officers in their detention of the Plaintiffs was constitu-
tional in all its aspects. Because the posture of the appeal
requires us to accept as true all of Plaintiffs’ assertions, there
are material issues of fact that make such a conclusion imper-
missible.
I. Monell Entitles the City of Seattle to Summary Judgment
Despite serious concerns about the conduct of the police,
this case cannot survive summary judgment. Plaintiffs did not
name in their cause of action the individual police officers
who searched their rooms and violated their rights. Rather,
Plaintiffs pleaded a case of municipal liability, claiming that
the City of Seattle and its police chief were liable for their
policies concerning detentions incident to search warrants and
for their failure to properly train police officers to conduct
those detentions. And so, Plaintiffs’ claims are controlled by
Monell, 436 U.S. at 691-692. To survive summary judgment,
there must be a genuine dispute of material fact as to whether
960 DAWSON v. CITY OF SEATTLE
there was a (1) policy or practice that (2) caused (3) a viola-
tion of plaintiffs’ rights. Id. at 692.
Although, Plaintiffs have demonstrated at least a dispute of
fact as to whether there were violations of plaintiffs’ rights
during the execution of the search warrant, they have failed
to show that a policy of the City of Seattle or Seattle Police
Department caused these violations. Roman Welyczko, an
attorney with DPH, testified in his deposition that while DPH
does not have a formal, written policy that police accompany
inspectors on every inspection warrant, “the expectation of
the department and what I have consistently communicated to
staff is to have police accompaniment for reasons of safety
and security.” ER 204. In his deposition, Seattle Police Cap-
tain Kessler indicated that “generally, yes, we would detain
people when we’re in the middle of a search warrant of any
kind. That’s a basic officer’s safety premise.” ER 252. There
is evidence, therefore, that both DPH and SPD have policies
or customs concerning police accompaniment of DPH inspec-
tors and detention incident to a search warrant for safety rea-
sons.
Plaintiffs argue, however, that DPH and SPD failed to train
their employees in how to execute the departments’ respective
policies, but the record does not support this contention. The
relevant issue here is not the training of DPH inspectors, but
rather the training of police officers, who are responsible for
the seizure and detention of the residents incident to imple-
mentation of a search warrant. According to Captain Kessler,
SPD training as to detentions varies from situation to situa-
tion; officers have been trained to handle such detentions; and
training is ongoing to assure that the detentions are executed
in a constitutional manner. Plaintiffs do not refute this evi-
dence of training and fail to create a genuine dispute of mate-
rial fact as to whether the policies of the Seattle Police
Department caused the violation of Plaintiffs’ rights. Sum-
mary judgment in favor of defendants is, therefore, appropri-
ate under Monell.
DAWSON v. CITY OF SEATTLE 961
II. The Police Officers’ Searches
Because this case presents an appeal from cross motions for
summary judgment in which the district court granted sum-
mary judgment in favor of defendants, our review must be de
novo and we must view the evidence in the light most favor-
able to plaintiffs to the extent that there is factual dispute. Am.
Bankers Assoc. v. Gould, 412 F.3d 1081, 1085-86 (9th Cir.
2005). The majority cites this standard, Majority at 932, n.1,
951-52 but fails to apply it.
The majority considers only whether the police had the
authority to detain the residents and whether that detention
was reasonably conducted, stopping short of considering the
actual searches. It concluded that “[a]part from the decision
to detain and the manner of detention, other police conduct
that might raise a constitutional question in an appropriate
case is not before us.” Majority at 951-52, n.8. Somehow the
majority erroneously thinks that the fact that this case does
not concern a motion to suppress evidence found during the
searches bars us from considering whether the searches vio-
lated Plaintiffs’ rights.
A. Searching Beyond the Warrant
The majority relies on Muehler v. Mena, Michigan v. Sum-
mers, and Ganwich v. Knapp1 to describe the limits within
which police have authority to detain incidental to executing
a search warrant. Muehler held that the police “authority to
detain incident to a search is categorical; it does not depend
on the quantum of proof justifying detention or the extent of
the intrusion to be imposed by the seizure.” Muehler v. Mena,
125 S. Ct. 1465, 1470 (2005) (internal quotation marks omit-
ted). The majority derives from this trio of cases its position
that “the duration of a detention may be coextensive with the
1
125 S. Ct. 1465 (2005); 452 U.S. 692 (1981); 319 F.3d 1115 (9th Cir.
2003).
962 DAWSON v. CITY OF SEATTLE
period of a search, and require no further justification” as long
as that detention is conducted in a reasonable manner. Major-
ity at 949.
All that may be true, but a “reasonable detention” does not
allow search for items beyond those authorized by the war-
rant. Nor does it allow for detention beyond that necessary to
conduct the authorized search (for evidence of health code
violations, in this instance).2
2
The warrant obtained by DPH inspectors to search 6418 Brooklyn Ave
NE reads as follows:
The Seattle-King County Department of Public Health has
applied for a Health Code Inspection Warrant to conduct a health
code inspection of the premises at 6418 Brooklyn Ave NE, Seat-
tle, Washington 98115, including the shack in the rear yard, other
outbuildings on the premises and any and all housing units that
may be contained therein. . . .
NOW, THEREFORE, you are hereby commanded to enter the
premises at 6418 Brooklyn Ave NE, Seattle, Washington to
inspect the exterior, including but not limited to, common areas,
yards, crawlspaces, porches, basement, attic and any out build-
ings, appliances, on the premises, specifically including the shack
in the rear yard of the property that serves as a living unit.
IT IS FURTHER ORDERED that you search inside the prem-
ises, including the shack in the rear yard, in areas where viola-
tions may exist including but not limited to, any individual
dwelling units or apartments or rooms or other housing units that
may exist inside the main building, and in the main building and
in the shack, in cabinets, closets, under furniture, inside furniture,
inside appliances, in common areas, storage spaces, basements
and attics.
IT IS FURTHER ORDERED that you search for evidence of
violations of the Seattle Municipal Health Code and seize any
evidence of such violations, including photographs and any other
evidence of filth, debris, rodent or insect infestation. . . . The pur-
pose of the inspection is to discover violations of the Seattle
Municipal Health Code. . . . You may obtain whatever assistance
is necessary and proper under the circumstances.
DAWSON v. CITY OF SEATTLE 963
Muehler and Ganwich permit a detention incident to the
execution of a search warrant, to protect the officers and
inspectors executing that warrant. These cases do not support
a search for items outside the scope of the warrant — in
essence, a search incident to the detention. It was “reason-
able” for the police to detain the residents in a single room
while the DPH inspectors executed their search warrant. It
was “reasonable” to frisk the residents at the outset of that
detention. It was not “reasonable” to question boarders as to
whether there were drugs or weapons in their rooms or to
search their rooms for drugs or weapons as part of this deten-
tion. Such searches are insupportable under Muehler and
Ganwich. The majority argues that questioning about drugs is
“reasonable” because knowing whether the detained residents
are drug users will alert the police to their potential for violent
behavior; the majority reasons that knowing whether there are
weapons present in boarders’ rooms is “reasonable” to protect
police officers and DPH inspectors. Majority at 954. The
majority’s opinion allows not just the “reasonable” detention
of the residents incident to the execution of the inspection
warrant, as permitted by Ganwich and Muehler, but also the
warrantless search for drugs and weapons, drugs and weapons
from which the residents were physically isolated by virtue of
their detention. The officer, inspector, and resident safety jus-
tifications cannot be supported on this basis. Permission for
the search incident to detention here expands Ganwich and
Muehler, unjustifiably, and runs roughshod over the Fourth
and Fourteenth Amendments in the process. I cannot support
it.
Contrary to the majority’s view of the evidence, that the
police simply accompanied DPH personnel during their
search to provide continued security, taking the evidence in
the light most favorable to Plaintiffs indicates that the police
were themselves involved in searching for things outside the
scope of the warrant.
As the majority opinion indicates, Plaintiff Shelly Sogga
testified by declaration that about an hour and a half into the
964 DAWSON v. CITY OF SEATTLE
inspection of 6418, a police officer escorted her from the
detention room. She was taken to the basement bathroom
where that officer told her that he had found drug parapherna-
lia in her room. Sogga was placed under arrest and read her
rights. The police continued to question Sogga about the con-
tents of her room, and in so doing, referred to a letter from her
mother, which Sogga believed the police had read. The police
told her to sign a consent form. When she asked to speak to
a lawyer, the police told her that she “could talk to one from
jail” and said that, if she refused to give her consent, she
would go to jail. Sogga’s Affidavit. She signed the consent
form. When she was allowed to return to her room twenty
minutes later, she found that the police had searched her
entire room, rifling through personal papers and leaving inti-
mate photos in full view.
The majority distinguishes this case from Ganwich v.
Knapp. Not so! Sogga’s story evokes the very issues upon
which Judge Gould rested his opinion in Ganwich v. Knapp,
where the police detained employees in a waiting room and
did not release them until they consented to interrogation. 319
F.3d 1115, 1120-1121 (9th Cir. 2003). While the majority
may argue that finding the drug paraphernalia gave the police
probable cause to question Sogga, it is not clear how the
police came upon this drug paraphernalia. The majority cites
Officers Jamieson’s and Zylack’s police report which states
that “[d]uring the search of the premises, several items of nar-
cotics paraphernalia were observed in plain view by officers
in a room that is occupied by S/Sogga.” SPD Incident Report,
Sept. 30, 1999. Sogga testified that the magic mushrooms
were in a silver container on the table. Sogga Deposition at
84, June 9, 2003. The standard of review, requiring us to take
the facts in the light most favorable to plaintiffs, is determina-
tive here. We must credit Sogga’s version of the facts, in
which the police had read through a personal letter from her
mother, indicating that they were searching, not simply clear-
ing the rooms of people to make them safe, and in which the
magic mushrooms were in a container. Viewing the facts in
DAWSON v. CITY OF SEATTLE 965
the light most favorable to plaintiffs, the police were engaged
in searching beyond the scope of the warrant; at the least,
there is a genuine question of fact on this issue.
Plaintiff Jeri Dawson, a resident of 6420, testified by decla-
ration that the police knocked on her door and told her to pro-
ceed to the back yard. She was not given time to put on her
shoes. Once she reached the back yard, a police officer asked
for her identification, which she had left in her room; the offi-
cer escorted her back to her room to retrieve her identifica-
tion. When she entered her room, she found two SPD officers
“apparently searching it.” Dawson Affidavit. One “appeared
to be looking into [her] closet and the other was standing next
to the table that contained [her] personal papers, jewelry mak-
ing materials, and medication.” Again, the police did not per-
mit Dawson to put on shoes, despite the presence of broken
glass near the patio where she would be detained. When the
inspection of 6420 ended and Dawson was permitted to leave
the back yard, she returned to her room to find that all of her
personal papers had been rearranged, as had her medications.
Once the police had determined that no one was left in the
rooms, they had finished the search necessary to effectuate the
detention of residents that would protect DPH inspectors,
SPD officers, and the residents. At that point, the warrant
gave DPH Inspectors authority to search for the items speci-
fied in the warrant. Continued SPD searches of individual
boarders’ rooms for other than the items listed in the warrant
was a violation of their constitutional rights. The majority’s
justification for searches for weapons and drugs is not sup-
portable under Muehler or Ganwich.
B. The Detention was Not “Coextensive” With the
Execution of the Search Warrant
Furthermore, Plaintiffs’ version of the facts, which we must
credit, does not support the majority’s conclusion that “the
police released Plaintiffs as soon as DPH finished inspecting
966 DAWSON v. CITY OF SEATTLE
the boardinghouses.” Majority at 954. Plaintiffs argue that the
detention of the residents of 6418 was not “coextensive” with
the DPH inspectors’ execution of their warrant. DPH Inspec-
tor Lasby testified that the detention of residents continued,
and police continued to search the premises, after the DPH
inspectors had completed execution of their inspection war-
rant. Lasby testified that he went with “the entire staff” to get
a cup of coffee in between the inspections of 6418 and that
of 6420; they were gone for twenty to thirty minutes. Upon
returning, they had to wait for the police to “finish 6418.”
Lasby Deposition at 98, June 2, 2003. Mr. Lasby believed that
the police had “gotten their own search warrant and were
completing work on that.” Id. at 99. In fact the police had no
such warrant.
Plaintiff Sogga’s statements indicate that the extension of
the detention was due to the police search of her room. The
majority may argue that this extension was permissible,
although outside the scope of Muehler, because the police had
probable cause for their search of Sogga’s room for drug para-
phernalia, but any such determination is based on disputed
facts. What is clear is that the police officers’ continued
search (1) was for items not covered by DPH’s search warrant
and (2) extended the detention of 6418’s residents such that
it was no longer coextensive with the execution of the war-
rant. See Muehler v Mena, 125 S. Ct. 1465, 1470 (2005)
(“Mena’s detention for the duration of the search was reason-
able under Summers because a warrant existed to search 1363
Patricia Avenue and she was an occupant of that address at
the time of the search.”). In contrast to Muehler, where the
warrant authorized a broad search of the house for weapons
and evidence of gang membership, id. at 1468, the warrant
before us was specific, limiting the search to health hazards
such as rat droppings.
Police searches incident to detention and the inconsistency
between the duration of the detention and the length of the
authorized inspection brings the issue of conduct of those
DAWSON v. CITY OF SEATTLE 967
police officers before us and brings into question the majori-
ty’s justification for ending their analysis with a justification
for the detention and its reasonableness. See Ganwich, 319
F.3d 1121, n.9 (“The detention of building occupants during
the execution of a search warrant may become unreasonable
if it lasts too long. We cannot tell whether the detention dur-
ing the execution of the warrant was too long in this instance,
as the officers did not limit their activities to executing the
warrant.”). The majority’s inquiry should have encompassed
what happened once the residents of these two boarding
houses were safely detained, the extent to which there was
questioning about and searching for things outside the scope
of the warrant and their detention after the authorized search
was completed. The majority’s decision not to address these
questions implicitly condones police behavior which is deeply
troubling.
III. Conclusion
Crediting Plaintiffs’ version of the facts, as we must, Seat-
tle police officers searched the rooms of the residents of 6418
and 6420 for items outside the scope of the warrant. This
search went beyond what is reasonable under Ganwich and
Muehler. The search and detention exceeded what was neces-
sary to guarantee the security and safety of the DPH inspec-
tors, the police officers, and the residents, and beyond what
the warrant under which they had authority to search permit-
ted. Once boarders had been frisked and detained in a single
room, the house was secure. There was no need for the police
to undertake further searches. However, because Monell con-
trols here, I reach the same result as the majority, that we
should affirm the district court’s grant of summary judgment
to defendants, but we should not condone the alleged miscon-
duct of Seattle police officers.