857 F.2d 1477
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Sandra DRINKHOUSE, dba the Joint Venture, Plaintiff-Appellant,
Ben L. ABERNATHY, Police Chief Fontana, Floyd Tidwell,
Sheriff San Bernardino, City of Fontana, John Van
De Kamp, Attorney General for the State
of California, Defendants-Appellees.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 4, 1988.
Decided Aug. 30, 1988.
Before TANG, FLETCHER and PREGERSON, Circuit Judges.
Sandra Drinkhouse appeals the district court's dismissal of her civil rights action under 42 U.S.C. Sec. 1983 (1982) seeking injunctive, declaratory, and monetary relief against the Fontana Chief of Police and other state officials. Drinkhouse, operator of a retail establishment known as the "Joint Venture," contends that the defendant officials improperly seized her property pursuant to an invalid search warrant and that they have unlawfully continued to deny her its return, in violation of her rights under the fourth and fourteenth amendments. We affirm.
I. Validity of the Search Warrant
Drinkhouse contends that the search warrant issued by the state court magistrate was not supported by probable cause because neither the warrant nor its supporting affidavit properly established the scienter element set out in Cal.Health & Safety Code Sec. 11364.7(a) (West Supp.1988). The district court determined that under the "totality of the circumstances" test of Illinois v. Gates, 462 U.S. 213, 230 (1983), the affidavit of Officer Thornburg adequately supported the finding of probable cause, and thus, that the warrant properly issued.
This court reviews issues regarding the validity of search warrants de novo. United States v. Hale, 784 F.2d 1465, 1468 (9th Cir.) cert. denied, 107 S.Ct. 110 (1986). The standard by which the sufficiency of a warrant is measured for probable cause is whether the supporting affidavit contains facts demonstrating there is a fair probability that evidence of a crime will be found in a particular place. United States v. Wiegand, 812 F.2d 1239, 1242 (9th Cir.) cert. denied, 108 S.Ct. 164 (1987); Gates, 462 U.S. at 238.
The affidavit presented by Officer Thornburg sufficiently satisfied the probable cause test. It was not necessary, as Drinkhouse suggests, that the officer's affidavit conclusively establish the scienter standards for drug paraphernalia statutes discussed in People v. Nelson, 171 Cal.App.3d Supp. 1, 218 Cal.Rptr. 279 (1985) (rejecting constitutional challenge to Cal.Health & Safety Code Sec. 11364.7 on vagueness grounds) and Hoffman Estates v. Flipside, 455 U.S. 489 (1982). Drinkhouse confuses the standard of proof necessary for the issuance of a search warrant with that required to establish guilt. See Wiegand, 812 F.2d at 1242. The affidavit was required merely, but necessarily, to present facts demonstrating a fair probability that Drinkhouse was in possession of materials in violation of California Health and Safety Code sections 11364.7 and 11014.5. This it did. The specific and extensive description of items in plaintiff's store, from dull razor blades to kits, concealed containers and snorting spoons, based on an experienced officer's personal observation, when viewed as a whole and in combination, see People v. Superior Court (Morton), 199 Cal.Rptr. 153, 155, 151 Cal.App.3d 899, 901 (1984), adequately supported the finding of probable cause. The original warrant properly issued.
II. Continued Retention
The district court also considered Drinkhouse's attack on the post-trial determinations by the state court that certain seized items were drug paraphernalia and therefore would not be returned. The court dismissed the entire post-trial challenge, which included claims seeking equitable and monetary relief, based on the doctrine of abstention set out in Younger v. Harris, 401 U.S. 37 (1971) and Huffman v. Pursue, Ltd., 420 U.S. 592, 609 (1975).
We review de novo the district court's decision to abstain, World Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 1081 (9th Cir.1987) and may affirm on any ground supported by the record, even if that ground is not relied on by the district court. Charley's Taxi Radio Dispatch Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 874 (9th Cir.1987). In this case, we affirm on the basis of collateral estoppel, a defense properly asserted by the defendants at trial and on appeal, though not relied upon by the district court. Because Drinkhouse had a full and fair opportunity to litigate the issue of the continued retention of her property in a California court of record and declined to appeal, we conclude that she may not relitigate the same issue in her section 1983 action in federal court.
Under the Federal Full Faith and Credit Statute, 28 U.S.C. Sec. 1738, the decision of a state court is entitled to the same preclusive effect in federal proceedings as it would have in that state's courts. See Takahashi v. Board of Trustees, 783 F.2d 848, 850 (9th Cir.1986). In Allen v. McCurry, 449 U.S. 90 (1980), the Supreme Court made clear that the doctrine of collateral estoppel applies in Sec. 1983 actions to preclude the consideration of issues already decided in state court. Whether an issue is in fact precluded in federal court is determined by state law. Takahashi, 783 F.2d at 850.
Under California law, it is plain that the municipal court's decision in this case, that certain items were contraband and would not be returned, has preclusive effect.
California courts apply a three-step analysis to determine whether collateral estoppel is applicable to a particular issue. First, there must be a final judgment on the merits. Second, the issue decided in the prior adjudication must be identical to the one presented in the action in question. Third, the party against whom collateral estoppel is asserted must have been a party or in privity with a party to the prior adjudication. Bernhard v. Bank of America, 19 Cal.2d 807, 813, 122 P.2d 892, 895 (1942) (citations omitted); Miller v. Superior Court, 168 Cal.App.3d 376, 381, 214 Cal.Rptr. 125, 128 (1985).
Heath v. Cast, 813 F.2d 254, 258 (9th Cir.1987). It is true that a pretrial ruling on a motion to suppress evidence is not considered final under state law, because such a ruling is a "preliminary evidentiary determination and is independent of the real question in the proceedings, that of the accused's guilt." Id. (quoting People v. Gephart, 93 Cal.App.3d 989, 1000, 156 Cal.Rptr. 489, 495 (1979)). In this case, however, Drinkhouse pursued a claim for the return of her property after her acquittal. Although she had the right to an appeal under Cal.Pen.Code section 1538.5(j), see People v. Bello, 45 Cal.App.3d 970, 972 n. 1, 119 Cal.Rptr. 667 (1975), she concedes that she did not seek review of the municipal court's rulings. Appellant's Opening Brief at 5. California statute provides that an action is pending "until its final determination upon appeal, or until the time for appeal has passed." Cal.Civ.Proc.Code Sec. 1049 (West 1980); Colvig v. RKO General, Inc., 232 Cal.App.2d 56, 42 Cal.Rptr. 473, 483 (1965). When the time for appeal has elapsed, the judgment is final. In re McDonald's Estate, 37 Cal.App.2d 521, 526, 99 P.2d 1115, 1118 (1940).
Under Rule 182 of the California Rules of Court, the time for filing an appeal in a criminal case from a judgment or appealable order of a municipal court is 30 days. Thus, the municipal court's order and decision filed January 9, 1984, refusing return of certain property was effectively a ruling that certain items were drug paraphernalia; it became a final judgment on the merits once the time for appeal passed. Since it turned on the identical issue that controls this case, and was rendered by a court of record1 in a proceeding to which Drinkhouse was a party, see Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892, 894-5 (1942), it has preclusive effect under state law. Cal.Civ.Proc.Code Sec. 1908 (West 1983). Pursuant to Takahashi, Drinkhouse was collaterally estopped from bring a Sec. 1983 action premised on the same facts previously litigated in state court.
Accordingly, the judgment of the district court is