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Smith v. City and County of Honolulu

United States Court of Appeals, Ninth Circuit

April 12, 2018

Rustin I. Smith, Plaintiff-Appellant,
v.
City and County of Honolulu, Defendant-Appellee.

          Argued and Submitted February 15, 2018 Honolulu, Hawaii

          Appeal from the United States District Court No. 1:11-cv-00498-LEK-RLP for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding

          Eric A. Seitz (argued), Della Au Belatti, and Sarah R. Devine, Honolulu, Hawaii, for Plaintiff-Appellant.

          Curtis E. Sherwood (argued), Deputy Corporation Counsel; Donna Y.L. Leong, Corporation Counsel; Department of the Corporation Counsel, Honolulu, Hawaii; for Defendant-Appellee.

          Before: Diarmuid F. O'Scannlain, Richard R. Clifton, and Sandra S. Ikuta, Circuit Judges.

         SUMMARY [*]

         Civil Rights

         The panel affirmed the district court's judgment, entered following a jury trial, and affirmed the denial of plaintiff's post-trial motions in a 42 U.S.C. § 1983 action alleging that plaintiff's Fourth Amendment rights were violated by Honolulu police officers, when following his arrest on drug charges that were subsequently dropped, he was improperly detained for approximately 47 hours.

         The panel held that plaintiff waived any argument that the district court erred in denying his motion for judgment as a matter of law and his motion for a new trial brought pursuant to Fed.R.Civ.P. 50(b) and 60. The panel held that the district court did not abuse its discretion in denying the motion for a new trial brought pursuant to Fed.R.Civ.P. 59. The panel held that because police obtained a probable cause determination within 48 hours following his arrest, plaintiff bore the burden at trial to prove that his detention was unreasonable. The panel agreed with the district court that the jury's verdict that plaintiff was not unreasonably detained was not against the clear weight of the evidence.

         The panel held that the district court did not err by rejecting three of plaintiff's proposed jury instructions. The panel determined that the instruction pertaining to a claim for an unreasonable seizure of property was properly rejected because the claim was not presented in plaintiff's complaint.

          A second instruction pertaining to defendants' failure to admit plaintiff to bail was also properly rejected because, among other things, the panel was not persuaded that a jury could have found that bail was unnecessarily delayed after finding that the determination of probable cause was not unreasonably delayed. Finally, the panel held that the district court properly rejected plaintiff's proposed instruction regarding whether plaintiff knew that the drug in his possession was illegal.

         The panel held that plaintiff had not established plain error arising from purported attorney and witness misconduct because any improper references made by the attorney and witness were harmless. Finally, the panel held that it was not error for the court to dismiss, with plaintiff's agreement, a juror who had threatened another juror.

          OPINION

          CLIFTON, CIRCUIT JUDGE.

         Plaintiff-Appellant Rustin Smith brought an action under 42 U.S.C. § 1983 alleging that his rights under the Fourth Amendment were violated by police officers employed by Defendant-Appellee City and County of Honolulu. Specifically, he alleged that following his arrest on drug charges that were subsequently dropped, he was improperly detained by the Honolulu police for approximately 47 hours. The case went to trial, and the jury returned a verdict in favor of the City and against Smith. The district court denied Smith's post-trial motion for judgment as a matter of law or a new trial. Smith challenges the denial of his post-trial motion and the rejection of three proposed jury instructions. He also alleges purported misconduct by defense counsel, defense witnesses, and the jury. We affirm.

         I. Background

         On April 6, 2011, Honolulu police obtained a search warrant to open a suspicious package that had been intercepted at the UPS Honolulu facility. The package contained 500 packets of substances labeled "bath salts" and "Spike Max." Initial testing indicated, but did not confirm, that the packets contained a drug called methylenedioxypyrovalerone (MDPV), which was illegal in Hawaii at that time.

         Six days later, on Tuesday, April 12, the police made a controlled delivery to Smith's home. At 1:40 p.m., after taking delivery of the package, Smith was arrested without a warrant for knowing possession of a dangerous drug. A few hours after Smith's arrest, the police effected controlled buys of MDPV at two stores owned by Smith. The police seized evidence from the house and the stores under Hawaii's forfeiture statute, Haw. Rev. Stat. § 712A.

         Later that day, a police officer completed a sworn application for a judicial determination of probable cause. A Hawaii state judge later signed a Judicial Determination of Probable Cause for the Extended Restraint of Warrantless Arrestee pertaining to Smith, based on the application. As the determination itself stated, however, that document was not signed until 8:07 a.m. on Thursday, April 14, the second day following the arrest. Ordinarily those documents are submitted to the court and reviewed by a judge by the next morning. The police officer who testified on this subject at trial did not know why the probable cause determination for Smith was delayed an extra day.

         Later that morning, the police received a lab report that confirmed that the substances were MDPV and conducted interviews with two of Smith's employees. At 12:25 p.m., the police informed Smith of his rights. Smith invoked his right to an attorney and did not provide a statement. Smith was released at 12:45 ...


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