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Hervey v. Estes

filed: September 12, 1995.

LYNN HERVEY, INDIVIDUALLY AND AS GUARDIAN OF MONICA HERVEY; TIM HERVEY; DEBBIE COUCH EMERY, INDIVIDUALLY AND AS GUARDIAN OF KEN EMERY AND MELISSA EMERY, PLAINTIFFS-APPELLANTS,
v.
CORAL ESTES; TOM LIND; PIERCE COUNTY; PIERCE COUNTY SHERIFF'S DEPARTMENT; TAHOMA NARCOTICS ENFORCEMENT TEAM; ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-92-05510-RJB. Robert J. Bryan, District Judge, Presiding.

Before: Robert R. Beezer and Michael Daly Hawkins, Circuit Judges, and Dickran M. Tevrizian, District Judge.*fn* Opinion by Judge Beezer.

Author: Beezer

BEEZER, Circuit Judge:

Law enforcement officers conducted a military-style raid to search for a methamphetamine laboratory on rural property in Pierce County, Washington. We decide whether a warrant affidavit procured in part through false statements contained sufficient untainted information to support the existence of probable cause. We also address whether plaintiffs may maintain a suit against an intergovernmental task force for its alleged use of excessive force in carrying out the raid, and against an individual officer for her alleged use of excessive force during the raid.

The district court granted summary judgment in favor of defendants on all claims. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse in part, affirm in part, and remand for further proceedings.

I

In May of 1990, Washington State Patrol Detective Coral Estes began an investigation into a suspected methamphetamine laboratory on the Hervey property in Pierce County. Estes was working in conjunction with the Tahoma Narcotics Enforcement Team ("TNET"), an intergovernmental task force made up of various local, county and state agencies with authority to investigate suspected drug operations. After completing various information gathering, including speaking to informants, flying over the suspect property, and talking to various officers who had visited the property, Estes signed an affidavit for a search warrant.

The warrant affidavit contained the following facts. Estes met with an anonymous citizen informant who relayed that a second anonymous informant knew of a person who was suspected of manufacturing controlled substances in a clandestine laboratory. The first informant described Michael Hervey's residence and relayed that the second informant had detected strong chemical odors "described as Acetone." Estes met with the second informant and confirmed these observations. The second informant also indicated to Estes that United Parcel Service made frequent deliveries to the residence, Hervey used vehicles to block the driveway, and Hervey possessed a firearm.

Estes flew over the subject property and observed three large drums. In her "experience and training" Estes knew that chemicals used in methamphetamine manufacturing were transported in large drums. Estes also observed vehicles parked in the driveway.

On July 20, Deputies Riehl and Maye of the Pierce County Sheriff's Office responded to a call from Hervey on an unrelated matter. When they arrived at the property, Deputy Riehl heard a portable generator running. Michael Hervey approached them with "white powder on his lips, in his nostral [sic] hairs, and on his hair." According to Estes' affidavit, Deputy Riehl "could smell an odor of cat urine or P2P (a precursor chemical to the manufacture of Methamphetamine) about [Hervey's] person." Deputy Riehl also "noticed an odor of acetone coming from one of the vehicles parked in the driveway." Finally, Deputy Riehl "recognized the odors that are consistent with the manufacturing of Methamphetamine based upon his training and experience."

Finally, Estes' warrant affidavit described Deputy Riehl's background in law enforcement. Deputy Riehl completed courses in "Narcotics and Dangerous Drug [sic] for Law Enforcement" and attended the "Clandestine Laboratory Safety Training." The affidavit also indicated that Deputy Riehl was "certified" as a Narcotics Investigator and in Clandestine Laboratory Investigation.

Estes presented the affidavit to Pierce County Superior Court Judge Buckner. On July 20, 1990, Judge Buckner issued a search warrant authorizing law enforcement officers to search the "residence of Michael W. Hervey" together with "outbuildings and vehicles located on said premises."

TNET prepared to execute the warrant on July 23, 1990. A surprise raid was planned largely because of the possible danger involved in executing warrants at clandestine drug laboratories. Deputy Sheriff Thomas Lind, one member of the entry team, described the "standard garb" worn by members of the team:

I had a 9mm sidearm in a holster, and a submachine gun with a suppressed muzzle to decrease the chance of an explosion if it were fired in the volatile atmosphere of a drug lab. I was wearing a black fire-retardant Nomex suit, boots, gloves and hood, and a heavy ballistic vest over that clothing. I was also wearing a full-face respirator mask which had a speaking diaphragm built into it.

The participants lured Michael Hervey off the property and entered the property secretly, but the element of surprise quickly vanished. Two children on the property spotted the well-armed, strangely dressed team and began yelling. Deborah Couch, Tim Hervey's fiancee, stepped out of a trailer and also began screaming. Eventually, all occupants on the premises were "assisted . . . to the ground" by members of the TNET entry team. Lynn Hervey objected to the assistance provided to her, contending that Detective Estes used unreasonable force.

No methamphetamine laboratory was discovered on the property. The entry team did, however, discover a small marijuana growing operation. Michael Hervey was subsequently prosecuted for, ...


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