Mary Stewart v. Silva

On Petition for Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.
_____________________

1. Should a mother who suffers the murder of her daughter by a person known to the police, the failure of the police to investigate the crime, the fabricated charge by the police nine years after the death that she herself is the murderer, and then the demeaning use of an abusive search warrant to punish and intimidate her have a remedy under 42 U.S.C. Section 1983, for the violation of her constitutional rights?

2. Is a police officer entitled to a qualified immunity from liability under 42. U.S.C. Section 1983, where his affidavit in support of a search warrant contains at least 31 deliberate fabrications or omissions of fact without which the magistrate would never have found probable cause to issue the warrant?

3. Is the decision below upholding the abusive use of a search warrant not to pursue a legitimate criminal investigation but rather to retaliate against the petitioner for her attempts to have the police investigate her daughter's murder in conflict with this Court's decisions recognizing that private citizens have a viable remedy under 42 U.S.C. Section 1983, for police lawlessness?

Questions Presented For Review.................................................................................................... i

Table of Contents...........................................................................................................................ii

Table of Authorities........................................................................................................................iii

Citations of Opinions and Orders....................................................................................................

Basis for Jurisdiction in this Court....................................................................................................

Constitutional and Statutory Provisions Involved..............................................................................

Statement of the Case.....................................................................................................................

Argument Supporting Allowance of the Writ....................................................................................

Conclusion....................................................................................................................................

Appendix................................................................................................................................. post

The unpublished per curiam opinion of the United States Court of Appeals for the Ninth Circuit in Mary Stewart v. Martin Silva (C.A. No. 04-55621), decided December 27, 2005, affirming the District Court's order granting the respondent Martin Silva's motion for summary judgment is set forth in the Appendix hereto(App. 1-3).

The unpublished Memorandum Opinion of the United States District Court for the Central District of California in Mary Stewart v. Martin Silva (Civil Action No. CV-02-177-SGL), decided March 17, 2004, granting the respondent Martin Silva's motion for summary judgment is set forth in the Appendix hereto(App. 4-18).

The unpublished order of the United States Court of Appeals for the Ninth Circuit in Mary Stewart v. Martin Silva (C.A. No. 04-55621), filed January 17, 2006, denying the petitioner Mary Stewart's timely filed petition for rehearing is set forth in the Appendix hereto(App. 19).

The decision of the Ninth Circuit Court of Appeals affirming the District Court's order granting the respondent Martin Silva's motion for summary judgment was entered on December 27, 2005; and its order denying the petitioner Mary Stewart's timely filed petition for rehearing was filed on January 17, 2006(App. 1;19). This petition for writ of certiorari is filed within ninety (90) days of the date of the court of appeals' denial of the petitioner Mary Stewart's timely filed petition for rehearing. 28 U.S.C. Section 2101(c). Revised Supreme Court Rule 13.3. The jurisdiction of this Court is invoked pursuant to the provisions of 28 U.S.C. Section 1254(1).

Constitutional, Statutory and Rule Provisions
Implicated by This Petition.

Some time during the evening of June 9, 1992, Terese Ranee Stewart, the 29-year-old daughter of the petitioner Mary Stewart (“the petitioner”), died in their home in Temecula, California as the result of a gunshot wound to her forehead. Investigators for the Riverside County Sheriff's Department found a .25 caliber semi-automatic handgun wedged butt down with the barrel facing away from Terese's body between the seat cushions of the chair where she was slumped, just under her armpit. A spent shell casing was found in the same location. The handgun had been given to the petitioner by a friend; she kept it in her bedroom and had never used it.

The Sheriff's deputies and homicide detectives photographed the room in the house where Terese was found as well as her own apartment separate from the house in the garage area, access to which required a key which the petitioner provided. The coroner termed Terese's death a suicide, advising the petitioner that an autopsy of her daughter was unnecessary, advice which caused the petitioner to forego an autopsy of her daughter. The coroner's toxicology report found no drugs or alcohol in Terese's blood at the time of death.

In the days following Terese's death, the petitioner and her son Shane tried to come to terms with Terese's suicide. The petitioner, an experienced psychotherapist, could find nothing in her daughter's recent past to warrant the conclusion that she would take her own life. In fact, all indications were that she would not do so. Terese had just finished developing a lucrative software program for mental health professionals; she was in good spirits, socializing with friends days before her death, and she looked forward to completing her college education. The petitioner and Shane doubted Terese had taken her own life; and they reported their suspicions to the homicide investigators for the Riverside County Sheriff's Department.

Although the detectives and their supervisor insisted that there were no grounds to re-open the case, they did agree to test the gun for fingerprints. However, there were no prints or even smudges found on the weapon—it had been wiped clean. Instead of beginning an investigation to discover how Terese could take her own life with a weapon which had no fingerprints, the Sheriff's Department told the petitioner that she and her son were “in denial” about the event and after consulting with the two detectives at the death scene as well as a third detective assigned at the petitioner's urging to review the case, Sheriff Coyce Byrd inexplicably told the petitioner that because it really didn't look like a suicide, “it must be a suicide.”

Faced with this refusal by the Sheriff's Department to conduct any meaningful investigation of her daughter's death, the petitioner hired private investigators to examine all the relevant witnesses and evidence in an attempt to determine whether Terese had taken her own life or was murdered. Between 1992 and 2000, the private investigators assembled a compelling collection of interviews and evidence to conclude that Terese was murdered by John Wesley(“Wesley”), a business associate of Terese and the petitioner in 1992.

Early in this private investigation, the petitioner examined forensic photos of her home and Terese's separate apartment taken when the police arrived on the morning June 10, 1992. The petitioner knew that when she came home near midnight on the evening of June 9, 1992, the house was locked and dark. There is a double deadbolt lock and a regular door lock on both the front and back doors to the house; the double deadbolt lock has no button lock but requires a key to lock it. Unbeknownst to the petitioner, Terese already lay dead in the spare bedroom within the house but the petitioner did not find her until the next morning. The forensic photos show that Terese's set of keys were inside of her locked apartment separate from the house when the police arrived on the morning of June 10, 1992.

Thus Terese was killed inside the petitioner's locked house while her keys which she would have had to use to lock the house were located in her separate, locked apartment access to which required a key which the petitioner provided to the police on the morning of June10th. This fact proved that Terese could not have committed suicide: Terese had no way to get into the locked house and then lock it back up while the set of keys needed to do this were locked in her separate apart-ment; there must have been another person present with the key necessary to let Terese into the house and then lock the house back up so that when petitioner came home at midnight on June 9, 1992, she found the house locked. John Wesley, then a business associate of Terese and the petitioner, possessed this key to the petitioner's house.

On June 10, 1992, in the midst of the Sheriff's Office's on-scene investigation of Terese's death, the petitioner did not go to Terese's apartment and did not see her keys there. After the Sheriff's investigators and the coroner had left her home, the petitioner left to find her son Shane, leaving Wesley and his wife Lynn in her house. When the petitioner returned, Terese's set of keys were on a TV stand in her house's family room, a place where the petitioner had never seen them before and in a place different from where the police's forensic photos showed them to be earlier that same day, i.e., in Terese's apartment. But until she saw the forensic photos in August of 1993, the petitioner assumed that Terese had left her keys on the TV stand. Wesley denied to the petitioner's private investigator that he moved the keys but claimed that he “found” Terese's keys on the TV stand after the petitioner left the house to find her son Shane.

Other physical evidence attending Terese's death pointed to homicide: the location of the handgun under her arm wedged butt down between the cushions of the armless chair where she was slumped is inconsistent with suicide where the gun more likely would have dropped to the floor; testing proved that the location of the spent shell casing should have been opposite to where it was found; and Terese's apparently self-inflicted wound in the middle of her forehead is an unheard wound with suicide. Moreover, the pattern of blood spattering on the wall is inconsistent with Terese's shooting herself with her own hand while sitting in a chair; she was most likely shot at some distance by another while standing, facing the door of the spare bedroom, then placed in the chair after the shooting. Finally, there were no fingerprints on the handgun; it had been wiped clean , a circumstance clearly at odds with a self-inflicted wound.

Having concluded that Terese's death was most likely a homicide, the petitioner's nine-year private investigation then determined from all the available evidence that Wesley, with his wife Lynn as an accomplice, most likely killed Terese on the evening of June 9, 1992. The Wesleys met the petitioner in 1990 and John Wesley gradually insinuated himself into her life as her personal financial advisor and then as her business consultant. Besides persuading the petitioner to invest her money in some of their ventures, the Wesleys convinced the petitioner to contribute $85,000 in order to underwrite a computer business (Giant Computer Business Centers, Inc.); inventory was stored in the petitioner's house; and the Wesleys received keys to the petitioner's residence with permission to come and go as they pleased. Wesley also convinced the petitioner to set up a living trust of her real and personal property naming them as the trustees instead of Terese and Shane, falsely telling the petitioner that neither of her two children could be trustees since they were also the beneficiaries.

Both Terese and Shane became suspicious about dividing up their mother's property in the event of her death for purposes of this living trust and they delayed making any designations in this regard for fear that it would ultimately benefit the Wesleys as trustees. However, with Terese now dead, the petitioner's property no longer needed to be designated between the two children; and the Wesleys sought to complete the living trust and have full control over all of the petitioner's assets when she died. In fact, the petitioner's private investigation showed that prior to Terese's death, the Wesleys had concocted a scheme to steal everything the petitioner and Terese owned, including the petitioner's computer business as well as Terese's billing and office manager software program she had developed for mental health professionals.

Terese even warned her mother, the petitioner, that they should not trust Wesley. For three months preceding her death, Terese, an independent and outspoken woman, told the petitioner that Wesley was a bully, could not be trusted, and was jealous of Terese because she had surpassed his software programming knowledge. She asked the petitioner to mediate between her and Wesley and the petitioner responded by defending Terese when Wesley tried to disparage Terese's work. But Wesley continued to seek ownership of the software program Terese was developing for his own economic benefit and he sought to take control of Giant Computer as well.

Wesley's behavior toward Giant Computer personnel grew more aggressive and intimidating through early June of 1992, prompting the petitioner to confront him about his narcissistic personalty traits which she thought, as a psychotherapist, contributed to his difficulties. The next day, June 9, 1992, the petitioner discovered that $12,000 worth of Giant Computer's office expenses had been charged by the Wesleys to her credit card and she again confronted Wesley about it. He agreed to control his spending and to come up with his share of the business' capital investment. At that time, the petitioner agreed that the Wesleys could pick up her computer from her home that evening.

Another meeting that afternoon between the petitioner and the Wesleys was acrimonious. The Wesleys were furious that the petitioner had characterized Wesley as having a narcissistic personality disorder; and Wesley threatened the petitioner stating, “...I have known you for two years and have never seen you cry. Girl, I'm going to break you. I'm going to see you cry.” As the petitioner left, Wesley wanted to know when she would be coming home that evening and she responded that it would be close to midnight. By the time the petitioner returned home that evening around midnight, her daughter Terese was already dead, the coroner estimating the time of death to be after 9:00 P.M. on the night of June 9, 1992.

The private investigator's evidence further indicated that immediately after Terese's death, Wesley continued to implement his plan to have the petitioner fund Giant Computer while leaving Wesley and his wife to run the company as they saw fit. He attacked the petitioner three weeks after her daughter's death as not being sufficiently remorseful; and soon after, Wesley unsuccessfully tried to have the petitioner resign as CEO of Giant Computer because she refused to provide another $25,000 to fund the company. In July of 1992, he asked the petitioner for $25,000 to license Terese's software program. She refused. In August of 1992, Wesley convinced the petitioner to take out a $250,000 life insurance policy on her own life naming Giant Computer as the beneficiary. In early September of 1992, the petitioner refused to meet the Wesleys' supposed $40,000 investment in Giant Computer after the Wesleys could not produce a record of their contribution. The petitioner further refused a demand by Wesley in September of 1992 that she invest another $10,000 to market Terese's software and she informed Wesley that he had no legal right to her daughter's software.

When Wesley threatened the petitioner to stay away from Giant Computer's office, she concluded that Wesley must be discharged from the company. However, the Wesleys had already presented falsified corporate documents to bank officers in order to replace the petitioner's name on Giant Computer's accounts with Wesley's name. The petitioner later discovered that the Wesleys had charged thousands of more dollars to her charge accounts. On September 24, 1992, the petitioner faxed termination letters to the Wesleys even when Lynn Wesley was writing the petitioner that they still needed to finish establishing her living trust in the Wesleys' favor!

In response to the termination letter, the Wesleys took over Giant Computer's premises, changed the locks, brought in a guard dog and occupied it day and night. Wesley began a campaign to ruin the petitioner's reputation, telling all of Giant Computer's customers that she was promiscuous with men and a lesbian who had murdered her own daughter. He left threatening messages on her answering machine promising to revoke her psychotherapy license, to instigate a murder investigation against her and to destroy her standing in the community.

In October of 1992, the petitioner together with other investors in Giant Computer filed a civil action against the Wesleys seeking damages for defamation, conspiracy and fraud. The Wesleys then began removing inventory and furnishings from the Giant Computer premises and forcibly collected more than $25,000 in accounts receivable. In December, 1993, Wesley escalated his accusations against the petitioner by asserting to her private investigators that she had an ongoing incestuous relationship with Terese. In October of 1994, a Riverside Superior Court jury awarded the petitioner $1.7 million in compensatory and punitive damages. The jury further recommended that the case be referred to the Riverside District Attorney's Office for criminal charges. The Wesleys have never paid the petitioner any damages.

In January of 1996, the Wesleys were arrested and incarcerated on charges of committing felony criminal fraud on the petitioner. On April 23, 1996, under the terms of a plea bargain, Wesley was sentenced to one year in jail and Lynn was given 120 days in jail to be served on weekends. Wesley was eventually released on parole on July 10, 1996. Soon after, the petitioner and her son Shane began receiving crank phone calls; and Shane reported suspicious activity in and around his home. Once Wesley's parole officer told Wesley that he was aware of this activity against the petitioner and her son, it stopped.

The petitioner's private investigation further unearthed abundant evidence that the Wesleys are con artists who had perpetrated their fraudulent investment schemes totaling over $1 million on several other individuals in California and other states. In addition, it was discovered that Wesley (who has several aliases and Social Security numbers) had never been divorced from his prior wife before marrying Lynn; he almost blinded his former wife in a domestic assault; and he repeatedly beat and locked his daughter in her room for up to two weeks. He has been excommunicated twice from the Mormon Church (in 1986 and in 1993), both times for defrauding Church members. Ultimately, the Mormon Church filed a lawsuit against the Wesleys to force them to vacate Mormon land where they had illegally resided for over three years.

During his interview with the petitioner's private investigators, Wesley had no alibi for his actions on June 9, 1992, after 10:00-10:30 P.M. when Terese was murdered. In fact, he had intended to pick up a computer at the petitioner's house that evening and knew that the petitioner would not be home until around midnight. He was familiar with the gun given the petitioner, knew where it was located in her home, and knew how to handle the gun, even stating that he knew what it sounds like when fired and that it had been wiped clean of fingerprints. Furthermore, he possessed keys to the petitioner's home, had free access to come and go as he wished and knew how to lock and unlock the double deadbolt lock. Wesley also claimed that he was the last person to see Terese alive and thought he was a suspect in her death(at the time he made these statements, the police claimed her death was a suicide).

While repeatedly contradicting himself, Wesley described various details of Terese's murder to the petitioner's investigators, details which he could not have known unless he was present at the death scene including how the blood flowed from the wound, the trajectory of the bullet, the blood spattering on the walls, the three bullets in the gun and the absence of fingerprints on the gun.

The investigation also located witnesses (James and Sara Neely) who reported that Lynn Wesley told them that she and John Wesley went to the petitioner's house around 10:00 P.M. on the evening of June 9, 1992, “to do some computer work” but left because no one was home, a statement which undermines John Wesley's claim that they never went to petitioner's house that evening. Other percipient witnesses (neighbors and a friend) reported seeing Terese's pickup in the petitioner's driveway, parked at a crooked angle, from between 9:40 and 10:25 P.M., undermining Lynn Wesley's claim that no one was home. Moreover, another witness (Arlene Wood) observed two people in a light-colored car parked in front of the petitioner's house during this time with one of the occupants resembling Terese. When the petitioner came home at midnight, Terese's pickup was now parked straight in the driveway.

The Wesleys' behavior immediately after Terese's death provokes further inquiry. They showed up uninvited and unaffected by the tragedy of Terese's death at the petitioner's home on the morning of June 10, 1992, while the Sheriff's Department was conducting its investigation. Once the police left and the petitioner went to find her son, they stayed at the home and wiped the blood from the walls in the spare bedroom where Terese was killed. At this time, Wesley told Dr. Peggy Taylor that this was not a suicide, that he knew who had done it—that she was killed “by a narcissistic personality disorder....”

According to Dr. Taylor, Wesley then began to examine Terese's computer, searching for (he claimed) a suicide note. Everyone except the Wesleys eventually left the petitioner's home and the Wesleys were the last to leave. Many of Terese's notebooks, her journal and personal writings remain missing. Wesley admitted to the petitioner's investigators that he was able to obtain possession of Terese's software program for mental health professionals after her death and he hired one Judy Wagner to finalize its development so that he could market it for profit.

In the weeks after Terese's death, Wesley became more insistent that the petitioner invest more money in Giant Computer, give the Wesleys more control of the company, execute a living trust in their favor, obtain life insurance on her own life in favor of Giant Computer and pay them a fee to license Terese' software program. When the petitioner balked at these incessant demands and began to end the Wesleys' control over her life, John Wesley responded by defaming the petitioner, claiming that she was a “slut” with men, that she and Terese had been in an incestuous lesbian relationship and that the petitioner had murdered her own daughter. All of this outrageous conduct led to the petitioner's lawsuit against the Wesleys for defamation, conspiracy and fraud and the jury's ultimate damage award in her favor of $1.7 million.

As the petitioner's investigator concluded at the end of this nine-year process, “[t]he evidence has convinced [the petitioner] and me that Terese was murdered by John Wesley....A search of the Wesleys' living quarters, safe deposit boxes, and their mini-storage space might uncover some of Terese's notes and her journal taken from her [apartment by Wesley].”

Armed with this investigatory packet of evidence showing that her daughter was murdered by John Wesley, the petitioner contacted the California Attorney General's Office in San Diego. However, the Senior Assistant Attorney General referred the matter back to the Riverside County District Attorney for a renewed investigation. Chief Deputy District Attorney Michael Soccio then assigned the case to the respondent, Senior Investigator Martin Silva(“Silva”).

The petitioner met with Silva on February 22, 2001, and consistent with her investigatory packet, she outlined thirty-one (31) pieces of evidence her investigation had unearthed concerning Wesley's lack of credibility, his financial motives to kill Terese, his aggressive behavior towards her daughter during the weeks preceding her death which required the petitioner to intercede on three separate occasions and his suspicious conduct in the immediate wake of Terese's death, including washing the blood spatters off the wall of the bedroom while the petitioner was away from the house.

However, neither Soccio nor Silva reviewed the petitioner's investigatory evidence with her. Indeed, by this time, Silva had already targeted the petitioner— not Wesley—as the prime suspect in Terese's death based on Wesley's statements in the file that she and Terese had been in an incestuous lesbian relationship and that the petitioner had murdered her own daughter, the very unsubstantiated slanderous statements which led to the petitioner's lawsuit against the Wesleys for defamation and conspiracy for which a Riverside County Superior Court jury awarded the petitioner $1.7 million in damages. As Silva stated to the petitioner, “[e]ither you killed her, or it was suicide....In these cases, we just want to get closure,” a message to the petitioner that if she accepted the Sheriff's Department's finding of a suicide, she would not be pursued as a murder suspect.

Instead of locating John Wesley and searching his living quarters, safe deposit boxes and mini-storage space to uncover Terese's notes and her journal which he took from her apartment the night of or the day after her murder, Silva visited the petitioner's residence alone late at night on February 28, 2001, asking for files she had mentioned in an interview earlier that day (which she gave him)and then questioning her at length about her sexuality and her sex life. During this “interview,” Silva, echoing Wesley's unsubstantiated slander for which a jury awarded her damages, accused the petitioner of molesting Terese as a child, of being a lesbian and of having an incestuous relationship with Terese in 1992. The petitioner strenuously denied these accusations and affirmed that she had never molested her daughter, had never had any lesbian contact in her life and was instead heterosexual.

On March 27, 2001, Silva then authored a fourteen-page affidavit in support of a warrant to search the petitioner's present home (not the house where the murder occurred) for “[a]ll writings and recordings by [the petitioner] pertaining to this case.” In his affidavit, Silva asserted that after reading all the files and listening to several tape recorded interviews, he believes “the possibility of a homicide exists and that [the petitioner] is the most likely suspect...[because she] was the only known subject that might have been around Terese at the time of her death.”

Silva's affidavit intentionally omits at least thirty-one (31) salient facts which would have been material to the magistrate's assessment of probable cause to believe that the petitioner had murdered her daughter and that her writings and recordings sought in this warrant would be relevant to her prosecution. Silva intentionally did not tell the magistrate that John Wesley, upon whom Silva relied to repeat the defamatory insults that the petitioner and Terese had been in an incestuous lesbian relationship and that the petitioner had murdered her own daughter, was convicted of felony fraud against the petitioner in 1996; that he was found liable for slander, conspiracy and fraud as a result of these same statements by a Riverside County Superior Court jury which awarded $1.7 million in damages to the petitioner, none of which was ever paid; that Silva did not believe these statements by Wesley; that Wesley threatened the petitioner the day before Terese's murder; and that besides defrauding the petitioner, the Wesleys scammed other victims in California of over $1 million between 1987 and 1992.

In addition, Silva never told the magistrate that Wesley stole Terese's software program for his own profit, a clear motive to kill her; that Wesley told various people that he, not the petitioner, was the last person to see Terese alive; that he had been excommunicated from the Mormon Church for committing fraud upon Church members; that he is a bigamist who has abused his former wife and his daughter; that Wesley forcibly and illegally sought to take over Giant Computer, petitioner's company; that he superintended the destruction of physical evidence in the petitioner's home by washing blood off the walls the day after Terese's murder while the petitioner was gone from the home; that Wesley told Dr. Peggy Taylor that a “narcissistic personality” had killed Terese, one day after the petitioner confronted him about his “narcissistic personality;” that Wesley, according to various witnesses, appeared to be “exhilarated” after the murder; that he told three different stories about how Terese died shortly after her murder; that he harassed both the petitioner and her son after being paroled on his felony fraud charges; and that Wesley had keys and unfettered access to the petitioner's home at the time of the murder and no alibi.

Besides these omissions, Silva intentionally misstated the fact that Wesley had an alibi for the time of Terese's murder when, in fact, he did not; that Wesley stated to investigators that Terese was siding with him and not the petitioner in certain business disputes when, in fact, Wesley stated no such thing; that the petitioner “felt guilty” leaving Terese in the room where she found her, implying culpability when, in fact, the petitioner felt guilty only that her horror forced her from remaining in the room with her deceased daughter; and that she did not cry immediately after her daughter's death, again implying culpability, when, in fact, the petitioner reported to Silva she was in such shock for days she was unable to cry.

Silva also misstated in his affidavit that the petitioner was not upset about when questioned about her sexual relationships when instead the petitioner had been so upset that she sued and won a jury verdict based upon Wesley's statements about her “sexual relationships; and that the petitioner did not emotionally react when Silva accused her of killing Terese when, in fact, her attorney notified Silva that she was so traumatized by his accusations, she had placed herself in treatment with a psychiatrist, psychologist, medical doctor and her religious practitioner. Finally, Silva averred falsely that no one but the petitioner was at home when Terese's head may have been moved consistent with the blood pattern on her face when, in fact, several witnesses confirmed the presence of others at petitioner's home during this time frame and Lynn Wesley herself stated that the Wesleys were at the petitioner's house during the time when Terese was murdered.

On March 27, 2001, Judge Becky Dugan of the Riverside County Superior Court issued a search warrant based upon Silva's affidavit(App. 5). Later that day, Silva and four other male officers executed the warrant on the petitioner's home and vehicle, tearing apart her house, garage and vehicle, seizing nearly every written or tape recorded piece of information(Id.). During the search, the officers prevented the petitioner from phoning her attorney and demanded that she remain seated or be handcuffed. During the search, the petitioner stated to Silva's colleagues that he believed that the petitioner is a lesbian, that she molested her own daughter and then killed her so that she wouldn't tell others. Silva denied that he believed this but stated that it was “a control issue.”

In fact, every key witness who implicated John Wesley in Terese's death was never interviewed by Silva as part of his “investigation.” Instead, Silva's “investigation” ignored all of the petitioner's investigatory packet of evidence while “cherry picking” isolated parts of Wesley's discredited, self-serving statements to petitioner's investigators to make it appear to the issuing judge that the petitioner had killed her own daughter. Silva's acts resulted in no charges ever being brought against anyone—including John Wesley--- for the murder of Terese Stewart(App. 5).

Believing that Silva's search and seizure was not an honest collection of evidence concerning her daughter's murder but was instead a blunt attempt by the Riverside County District Attorney's Office to intimidate, harass and punish her for attempting to secure an investigation of Terese's death, the petitioner in March of 2002 brought this civil action for damages under 42 U.S.C. Section 1983, in the federal district court against the District Attorney, Riverside County, Silva and unnamed county law enforcement personnel. Voluntarily dismissing her complaint against all of the defendants except Silva, the petitioner alleged that his affidavit in support of the search warrant violated her constitutional rights under the Fourth and Fourteenth Amendments as well as her civil rights under Section 1983(App. 5).

She claimed that Silva's false and fraudulent affidavit violated her right of privacy, humiliated and shamed her and caused severe emotional distress warranting an award of damages. The petitioner alleged that Silva was not entitled to qualified immunity since no reasonable police officer in like circumstances could have believed that his actions were lawful in light of clearly established law and the information he possessed when he authored his false and fraudulent affidavit.

Silva then moved for summary judgment asserting his qualified immunity(App. 5-6). By agreement, the motion was heard by the Magistrate Judge Stephen G. Larson and on March 17, 2004, he issued his decision granting Silva summary judgment(App. 4-18). In order to survive such a motion in the Ninth Circuit based upon Silva's claim of qualified immunity, the petitioner was bound to make a substantial showing of deliberate falsehood or reckless disregard for truth by Silva in drafting his affidavit and establish that but for the dishonesty, the challenged action, i.e., the issuance of the search warrant, would not have occurred(App. 7-8).

While the Magistrate was “disturbed by both the nature and quantity of the... misstatements and material omissions in Detective Silva's affidavit” (which satisfied the first prong of the petitioner's burden), he was compelled by the law of the Ninth Circuit to conclude that even when those false statements are omitted and the material omissions are included, “Detective Silva's affidavit...establishes sufficient probable cause for a reasonable magistrate to have found that present in [the petitioner's] then current residence, there existed writings and recordings by [the petitioner] relevant to the murder investigation at the time Detective [Silva] applied for the warrant(App. 8-9;10;16)(emphasis supplied).

The petitioner appealed and on December 27, 2005, the court of appeals for the Ninth Circuit affirmed the Magistrate's ruling in an unpublished memorandum opinion(App. 1-3). It concluded that “[u]nfortunately, Section 1983 does not provide a remedy for [the petitioner's] claimed injuries” even though it found that the petitioner “has made an adequate showing that Silva ‘deliberately or recklessly made false statements [and] omissions in his affidavit'”(App. 2 quoting KRL v. Moore, 384 F.3d 1105, 1117(9th Cir. 2002)). As the court of appeals ruled, these misstatements and omissions were not material to a finding of probable cause because when the affidavit was redacted, the affidavit still states that the petitioner “possessed material at her residence relating to the murder of her daughter”(App. 2). Since there was probable cause for its issuance, the search warrant did not violate the Fourth Amendment “regardless of any wrongs committed by Silva”(App. 2-3).

On January 17, 2006, the court of appeals denied the petitioner's timely petition for rehearing(App. 19).

1. The Result Below Is In Conflict With Malley v. Briggs, 475 U.S. 335(1986), Illinois v. Gates, 462 U.S. 213(1983), Franks v. Delaware, 438 U.S. 154(1978) And This Court's Decisions Establishing Summary Judgment Procedure.

In ruling that Silva was entitled to qualified immunity, the Magistrate four times in his decision assumed that Silva drafted the affidavit as part of his “on-going investigation” into Terese's death(App. 5;10;15;16). This assumption is fundamentally at odds with the petitioner's core showing below which created genuine issues of material fact for a jury (1) whether Silva was conducting any investigation at all into Terese's murder when he applied for a search warrant; and (2) whether his admittedly fraudulent affidavit (and the search warrant it produced) was intended not to unearth relevant evidence about Terese's death but to retaliate against the petitioner for her attempts to have the police investigate her daughter's murder since1992. The court of appeals likewise failed to address these unresolved, genuine, triable issues of material fact identified by the petitioner's proof.

First, there is no basis for finding that an “on-going investigation”(App. 15) was afoot when the petitioner's summary judgment materials identified 31 misstatements or omissions of crucial facts in Silva's affidavit, all sanitizing John Wesley, the prime suspect in Terese's murder . Silva's “investigation” included interviewing none of the witnesses who implicated Wesley in Terese's death; he ignored most, if not all, of the petitioner's investigatory evidence, accumulated over nine years; and he most likely failed to interview Wesley himself while “cherry picking” isolated parts of his discredited, self-serving statements to petitioner's investigators, all to make it appear as if petitioner had killed her own daughter. Contrast Illinois v. Gates, 462 U.S. 213, 241-244(1983) (independent police investigation); Malley v. Briggs, 475 U.S. 335, 352(1986)(Powell, J., concurring in part)(“the gathering of information is the province of the police”). Silva's “investigation” resulted in no charges ever being brought against anyone—including John Wesley or the petitioner--- for the murder of Terese.

Second, there is a solid basis in the summary judgment materials for a jury to find that Silva‘s conduct was improperly motivated retaliation against the petitioner”for speaking out on a matter of public concern,” i.e., the murder of Terese Stewart, an integral part of her constitutional claim. Crawford-El v. Britton, 523 U.S. 574, 588; 592(1998). Silva's failure to investigate; his deliberate refusal to consider the petitioner's evidence showing that Wesley most likely murdered Terese; his focus on the petitioner to the exclusion of Wesley as the murderer despite this evidence; his late-night interview of the petitioner alone in her home; his threatening, accusatory behavior; his aggressive, demeaning search of her home when she was willing to give him any document he wanted; his admittedly fraudulent affidavit; and his wanton adoption of Wesley's salacious and despicable statements, the very ones which led a Riverside County Superior Court jury to award the petitioner $1.7 million in damages, all combine to present a jury question whether Silva was retaliating against the petitioner for seeking an investigation of her daughter's murder rather than conducting one himself.

While Silva's improper motive is initially irrelevant to the question of his qualified immunity, id . at 589;592, the jury issue of whether Silva was actually conducting an investigation when he applied for the search warrant goes directly to the finding of probable cause under Gates, 462 U.S. at 238-239. See Graham v. Connor. 490 U.S. 386, 397(1989).(App. 8-9). Conceding, as both courts below have, that Silva dishonestly included or omitted information in his affidavit, the petitioner was obligated to establish under the Ninth Circuit standard set out in KRL v. Moore, 384 F.3d at 1117 and Hervey v. Estes, 65 F.3d 784, 789(9th Cir. 1995), that the remaining information in his affidavit was insufficient to establish probable cause under Gates. See id., citing Franks v. Delaware, 438 U.S. 154, 155-156 (1978).

In deciding that the affidavit when revised to reflect Silva's misstatements and omissions established probable cause, both courts assumed as a fact that Silva was conducting a legitimate investigation. Having persuasively rebutted this assumed fact with her summary judgment materials, the petitioner created a jury question about another omission by Silva in his affidavit beyond those already identified which should have been included in any revised affidavit, i.e., that he was not conducting a legitimate investigation into Terese's death when he applied for a search warrant . See Anderson v. Creighton, 483 U.S. 635, 641(1987)(qualified immunity inquiry may necessitate determining certain essential facts). If this crucial omission were included in any revised affidavit, no magistrate would have issued the search warrant consistent with Gates, supra, and Malley, 475 U.S. at 345-346. Silva was therefore not entitled to a qualified immunity on this record.

Silva-- not the petitioner--was the party moving for summary judgment. As this Court made clear in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-151(2000), the Magistrate in reviewing the motion materials should draw all inferences in favor of the petitioner and make no credibility determinations because this is a function of a jury, not a judge. Id. citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Magistrate should have disregarded all evidence favorable to Silva that a jury was not required to believe and “give credence to the evidence favoring the [petitioner] as well as that ‘evidence supporting [Silva] that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested parties.'” Id. quoting 9A C. Wright & A. Miller, Federal Practice and Procedure, Section 2529, p.300(2d ed.1995). See Crawford-El v. Britton, 523 U.S. at 595-596. Measured by these standards, a fair minded fact finder could return a verdict for the petitioner on this record on the issue of whether or not Silva was conducting a legitimate investigation when he applied for this search warrant. His summary judgment motion therefore should have been denied. Anderson v. Liberty Lobby, Inc., 477 U.S. at 252.

2. The Ninth Circuit's Formulation Of The Burden Which Civil Rights Plaintiffs Must Bear In Responding To Motions For Summary Judgment Based Upon Qualified Immunity Undermines The Remedies Provided Them By 42 U.S.C. Section 1983.

This Court has held that the Constitution prohibits a police officer from making knowingly or recklessly false statements in support of a search warrant. Franks, 438 U.S. at 165-166. The Ninth Circuit has further held that when a police officer moves for summary judgment on the basis of his qualified immunity to a plaintiff's Section 1983 action for damages arising out of his falsified application for a search warrant, the plaintiff must establish that without the dishonestly included or omitted information, the magistrate would not have issued the warrant. KRL v. Moore, supra. Hervey, 65 F.3d at 789.

It is conceded that Silva intentionally or recklessly falsified substantial portions of his affidavit to the petitioner's detriment but because there was a fair probability that the petitioner possessed in her home writings and recordings relevant to her daughter's death—as any mother would----there was sufficient cause for the magistrate to issue the warrant and preserve Silva's qualified immunity to this abusive search(App. 9-10).

The petitioner submits that the burden which she as a civil rights plaintiff must bear in responding to a police officer's motion for summary judgment based upon his qualified immunity to liability for falsifying an application for a search warrant has not deterred police lawlessness in this case, has protected Silva from liability for blatantly fabricating evidence and has undermined the very purpose of Section 1983—to provide her a remedy for the violation of her federal rights. See Crawford-El v. Britton, 523 U.S. at 594-595.

In situations of abuse of office, an action for damages offers the only realistic avenue for vindication of constitutional guarantees. Harlow v. Fitzgerald, 457 U.S. 800, 814(1982) citing Butz v. Economou, 438 U.S. 478, 506(1978). The petitioner has suffered the murder of her daughter by a person known to the police, the failure of the police to investigate the crime, the fabricated charge by the police nine years after Terese's death that she herself is the murderer, and then the demeaning use of an abusive search warrant to punish and intimidate her. The petitioner is entitled to a remedy under Section 1983 for these serial violations of her constitutional rights.

3. The Petitioner's Proof Stated A Viable Claim Under 42 U.S.C. Section 1983 Because Silva's Conduct Violated The Petitioner's Substantive Due Process Rights.

The touchstone of substantive due process is an individual's right to be free from the arbitrary action of government. Collins v. Harker Heights, 503 U.S. 115, 125(1992). Daniels v. Williams, 474 U.S. 327, 331(1986). Poe v. Ullman, 367 U.S. 497, 542- 543(1961)( Harlan, J., dissenting). It serves to prevent governmental power from being “used for purposes of oppression” or arbitrary imposition. Daniels , 474 U.S. at 331-332(1986) quoting Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856). In practice, substantive due process claims are reserved for those substantial claims which are “otherwise homeless.” Albright v. Oliver, 510 U.S. 266, 288(1994) (Souter, J., concurring) citing Graham v. Connor , 490 U.S. at 395; Whitley v. Albers, 475 U.S. 312 (1986); and Gerstein v. Pugh, 420 U.S. 103(1975).

Substantive due process analysis is unwarranted only if all of the petitioner's claims are “covered by” the Fourth Amendment. County of Sacramento v. Lewis, 523 U.S. 833, 843(1998). If they are not, then this Court will determine whether Silva's conduct is actionable under Section 1983 for substantive due process violations. Id. at 843-849.The gravamen of the petitioner's constitutional claims is that Silva deliberately misstated and omitted at least 31 crucial facts in his affidavit in order to cast the petitioner as a suspect in her own daughter's death and to harass, intimidate and retaliate against her so that she would quit her demands for an investigation . This is conscience-shocking, arbitrary, oppressive conduct by Silva not “covered by” the Fourth Amendment , having nothing to do with a “pretrial deprivation[] of liberty,” Albright v. Oliver, 510 U.S. at 274, and it violates the petitioner's substantive due process rights. Lewis, 523 U.S. at 844 quoting Evans v. Avery, 100 F.3d 1033, 1036(1st Cir. 1996)(“outside the context of seizure,...a person injured as a result of police misconduct may prosecute a substantive due process claim under section 1983”)(emphasis supplied).

Moreover, as the Magistrate observed, because the petitioner was never charged with a crime, Silva's deliberate, unfair fabrication of evidence leaves her with no remedy at all under the Ninth Circuit's Fourth Amendment analysis(App. 17-18), precisely the kind of “otherwise homeless” but authentic constitutional claim, Albright, 510 U.S. at 288, for which substantive due process provides a remedy.

For all of the reasons stated herein, a writ of certiorari should issue to review and vacate the judgment of the court of appeals, remanding the matter to the district court for further discovery and a trial on the merits of the petitioner's claims; or to provide her with such other relief as is fair and just in the circumstances.