Richard Brubaker; Barbara Stapleton v. City of Tucson, a municipal corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD BRUBAKER; BARBARA
STAPLETON,
Plaintiffs-Appellees,
v.
CITY OF TUCSON, a municipal
corporation; et al.,
Defendants-Appellants.
No. 18-15742
D.C. No.
4:10-cv-00649-DCB-BPV
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted February 8, 2019
Phoenix, Arizona
Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.
In this 42 U.S.C. § 1983 action, Richard Brubaker claims that two police
officers violated the Fourth Amendment by deceptively obtaining a warrant to search
his home. The district court denied the officers’ summary judgment motion seeking
qualified immunity. We have jurisdiction over the officers’ interlocutory appeal of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the district court order under 28 U.S.C. § 1291 and affirm.
1. The affidavit submitted in support of the application for the search
warrant represented that Tucson police officers encountered Donald Deal “in the
area of a residence that we have received information from concerned citizens that
they were selling narcotic drugs.” Although the quoted statement is hardly a model
of clear draftsmanship, its obvious import is that the officers had received complaints
about drug sales at the Brubaker residence. That statement is inaccurate.
Complaints about drug sales in the general area in which Deal was arrested may have
been received, but no prior complaint involved Brubaker’s home.
2. The district court found a material issue of fact existed as to whether
the officers intentionally lied or made the statement with reckless disregard for the
truth. We cannot review that finding in this interlocutory appeal. See Eng v. Cooley,
552 F.3d 1062, 1067 (9th Cir. 2009) (“A district court’s determination that the
parties’ evidence presents genuine issues of material fact is categorically
unreviewable on interlocutory appeal.”). Thus, the remaining issue for resolution is
whether “the affidavit, once corrected and supplemented, would provide a magistrate
with a substantial basis for concluding that probable cause existed.” United States
v. Stanert, 762 F.2d 775, 782 (9th Cir. 1985). The corrected affidavit would have
informed the magistrate only that Deal, with whom the officers had never previously
interacted and whose version of events was not corroborated, identified Brubaker’s

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residence as the place where he had unsuccessfully attempted to buy drugs. That is
insufficient to establish probable cause to search a home. See United States v.
Mendonsa, 989 F.2d 366, 369 (9th Cir. 1993) (finding no probable cause when an
informant without a track record provided an uncorroborated tip that the defendant
was selling drugs in his home).
AFFIRMED.

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