textfiles/law/alcor-5

This is the final round on the motion before the judge ruled.  The ruling 
is attached. ---Keith Henson 

 
KINKEL, RODIGER & SPRIGGS 
  BRUCE DISENHOUSE 
3393 Fourteenth Street 
Riverside, CAlifornia  92501 
(714) 683-2410 
 
GREINES, MARTIN, STEIN & RICHLAND 
  MARTIN STEIN 
9601 Wilshire Boulevard, Suite 544 
Beverly Hills, California  90210-5215 
(213) 859-7811 
 
 
Attorney for Defendants County of Riverside, Grover C. Trask, II, Curtis  
R. Hinman, Raymond Carrillo, Robert Spitzer and John V. Mosley y
 
UNITED STATES DISTRICT COURT 
FOR THE CENTRAL DISTRICT OF CALIFORNIA 
 
 
H. KEITH HENSON, et al.,  
 
Plaintiffs, 
 
vs. 
 
Raymond Carrillo, et al., 
 
Defendants. 
 
Case No. SA CV 90-021 JSL (RwRx) 
 
REPLY TO OPPOSITION TO MOTION
TO DISMISS COMPLAINT FOR
DECLARATORY RELIEF AND
DAMAGES
 
Date:  May 14, 1990 
Time:  1:00 p.m. 
Courtroom:  No. 2 
Trial Date:  None set 
 


MEMORANDUM OF POINTS AND AUTHORITIES 

   Contrary to plaintiff's assertions, the complaint must be dismissed as 
to all of the named defendants because plaintiffs have failed to state a 
claim for relief pursuant to the Electronic Communications Privacy Act 
and, in any event, defendants are shielded from liability by the 
good-faith immunity provided by the statute. 

   This court will recall that in their motion to dismiss the complaint, 
defendants asserted that from a review of the search warrant attached 
thereto (Attachment A to complaint), they did not violate or exceed the 
specific terms of the search warrant order obtained by them prior to its 
execution at Alcor's premises and even if it were otherwise, the named 
defendants were entitled to dismissal on the basis of their good-faith 
reliance on the facially valid Riverside County Superior Court search 
warrant. 

   In seeking to oppose defendants' motion to dismiss, plaintiffs, rather 
than focusing on the specific allegations of their complaint and the 
specific statutory and case authority supporting their action, attempt to 
establish the invalidity of defendants' conduct and their lack of good 
faith in executing a search warrant, relying instead on materials not 
incorporated by reference in their complaint or alleged therein.  It 
would appear that in order to oppose the instant motion to dismiss, 
plaintiffs quite improperly attempt to convert defendants' motion to 
dismiss predicataed on Federal Rules of Civil Procedure, Rule 12(b)(6), 
to a motion for summary judgment pursuant to Federal Rules of Civil 
Procedure, Rule 56.  This they may not do. 

   Plaintiffs improperly attempt to shift their focus in opposition to 
the otion to dismiss by arguing that defendants had a purported duty to 
supply this court with evidentiary materials consisting of the affidavit 
in support of search warrant and then proceed to contend that defendants 
would have to demonstrate to this court that they had supplied the court 
issuing the warrant with tehse materials, thus permitting that court to 
find "that there is reason to believe that the contents of a wire or 
electronic communication...are relevant to a legitimate law enforcement 
inquiry."  Opposition, pp. 2-3.  Having made this baldface assertion, 
plaintiffs then proceed to improperly put before this court the purported 
affidavit which they claim was utilized to obtain the search warrant in 
this case.  However, plaintiffs have cited no authority and, indeed, 
defendants are aware of no proper authority which would permit plaintiffs 
to bring before this court a document purporting to be the affidavit n 
support of search warrant, since, again, plaintiffs are not faced with 
opposing a motion for summary judgment, but rather a motion to dismiss 
complaint based on the lack of supporting allegations in their complaint 
to proceed to trial. 

   Once this court makes a determination that the materials placed in 
plaintiffs' opposition have no proper place in that document, we are left 
with an opposition which is barren of any relevant authority to establish 
that defendants in fact violated the specific terms of said warrant at 
the time of its execution.  Moreover, plaintiffs have made no proper 
argument to establish that defendants failed to act in good faith in 
executing what defendants contend was a facially valid warrant. 

   While defendants do not quarrel wilth the concept that a search 
warrant issuing from a court is inseparable from and must be read in 
connection with the underlying affidavits which are attached to it (see 
United States v. Stanert, 762 f.2d 775,778 (9th Cir. 1985)), in the 
instant case the specific terms of the search warrant affidavit having 
not been alleged or incorporated by reference in plaintiffs' compalint, 
cannot now be utilized by plaintiffs to suggest that the search warrant 
in this case was overbroad, thus somehow negating defendants' assertion 
of good-faith immunity.  Contrary to plaintiffs' assertion, the search 
warrant in the instant case did not declare open season on all books and 
records at the property where the search and seizure occurred. Neither 
the allegations of the plaintiffs' complaint, nor the search warrant 
attached thereto, established that defendants were involved in a search 
of unlimited scope.  

   In sum, based on the arguments contained in defendants' trial motion 
to dismiss and this reply, this court should find that the search 
involved in the instant case violated neither Fourth Amendment 
requirements or the specific terms of the Electronic Communications 
Privacy Act or, in the alternative, that the defendants were, in fact, 
acting in good faith at the time of the search and seizure at the Alcor 
premises. 

CONCLUSION

   For all of the foregoing reasons, defendants respectfully submit that 
this court should grant their motion to dismiss plaintiffs' action for 
violation of the Electronic Communications Privacy Act since it is now 
obvious that they have failed to plead an appropriate federal claim under 
this statute.  Rather, plaintiffs' last-minute attempt to shift their 
position to establish illegality by virtue of materials never put before 
the court properly by way of allegation in the complaint and/or by way of 
an incorporation by reference, must be summarily rejected.  Since 
plaintiffs do not seek leave to amend to attempt to state a proper cause 
of action under the federal statute, this court should appropriately 
enter a dismissal. 


[signed/boilerplate]









UNITED STATES DISCTRICT COURT
MOTION TO DISMISS

 
H. KEITH HENSON, et al.,  
 
Plaintiffs, 
 
vs. 
 
Raymond Carrillo, et al., 
 
Defendants. 
 
SA CV 90-021 JSL

ORDER DENYING DEFENDANTS'
MOTION TO DISMISS


        The Motion of defendants to dismiss plaintiffs' complaint for 
came on for hearing regularly on May 14, 1990.

        Defendants moved to dismiss on the grounds that the complaint 
failed to state a claim pursuant to Federal Rule of Civil Procedure 
12(b)6.  Defendants asserted that, as a matter of law, no violation of 
the Electronic Communication Privacy Act of 1986, 18 U.S.C section 2701, 
et seq. occurred, or, alternately, that defendants are entitled to 
dismissal due to their good faith reliance on a facially valid search 
warrant.
        
        Having reviewed the papers filed in connection with this matter, 
having heard oral argument, and being fully apprised of the relevant 
facts and law,

        IT IS HEREBY ORDERED that the Motion of defendants to dismiss the 
complaint is DENIED.  Said denial shall be without prejudice should 
defendants wish to raise these same issues later in these proceeding.

        IT IS SO ORDERED.

DATED:  May 18, 1990

[signed]

J. Spencer Letts
United States District Judge