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Keith Henson RODIGER SPRIGGS BRUCE

Found at: 0x1bi.net:70/textfiles/file?law/alcor-5

This is the final round on the motion before the judge ruled.  The ruling 
s attached. ---Keith Henson
 
KINKEL, RODIGER & SPRIGGS 
  BRUCE DISENHOUSE 
Riverside, CAlifornia  92501 
(714) 683-2410 
 
GREINES, MARTIN, STEIN & RICHLAND 
  MARTIN STEIN 
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.,  
 
 
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 
   This court will recall that in their motion to dismiss the complaint, 
thereto (Attachment A to complaint), they did not violate or exceed the 
execution at Alcor's premises and even if it were otherwise, the named 
   In seeking to oppose defendants' motion to dismiss, plaintiffs, rather 
than focusing on the specific allegations of their complaint and the 
establish the invalidity of defendants' conduct and their lack of good 
faith in executing a search warrant, relying instead on materials not 
ncorporated by reference in their complaint or alleged therein.  It
to a motion for summary judgment pursuant to Federal Rules of Civil 
   Plaintiffs improperly attempt to shift their focus in opposition to 
the otion to dismiss by arguing that defendants had a purported duty to 
n support of search warrant and then proceed to contend that defendants
ssuing 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 
nquiry."  Opposition, pp. 2-3.  Having made this baldface assertion,
affidavit which they claim was utilized to obtain the search warrant in 
this case.  However, plaintiffs have cited no authority and, indeed, 
to bring before this court a document purporting to be the affidavit n 
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 
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 
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 
nstant 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 
n this case was overbroad, thus somehow negating defendants' assertion
of good-faith immunity.  Contrary to plaintiffs' assertion, the search 
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 
nvolved in the instant case violated neither Fourth Amendment
acting in good faith at the time of the search and seizure at the Alcor 
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 
the court properly by way of allegation in the complaint and/or by way of 
an incorporation by reference, must be summarily rejected.  Since 
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.,  
 
 
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 
the Electronic Communication Privacy Act of 1986, 18 U.S.C section 2701, 
et seq. occurred, or, alternately, that defendants are entitled to 
        
        Having reviewed the papers filed in connection with this matter, 
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 
        IT IS SO ORDERED.
DATED:  May 18, 1990
[signed]
J. Spencer Letts
United States District Judge


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