                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 4 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GARY KLEIN,                                     No.    15-56279

                Plaintiff-Appellant,            D.C. No.
                                                2:13-cv-00110-JFW-VBK
 v.

CITY OF BEVERLY HILLS; DANIEL                   MEMORANDUM *
CHILSON; MICHAEL PUBLICKER;
DAVID L. SNOWDEN, Chief,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                      Argued and Submitted March 10, 2017
                              Pasadena, California

Before: TASHIMA and NGUYEN, Circuit Judges, and MARBLEY,** District
Judge.

      Gary Klein appeals the district court’s grant of summary judgment in favor

of Defendants on his judicial deception claims. Klein argues that Defendants



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
violated his Fourth Amendment rights by obtaining three search warrants through

judicial deception. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1

      1. Klein argues that Detective Chilson, the affiant on all three warrants,

“misled the magistrate judge when applying for the warrant[s].” Smith v. Almada,

640 F.3d 931, 937 (9th Cir. 2011). Klein has failed to show a triable issue of

material fact that Detective Chilson made deliberately or recklessly false

statements, and that, but for his dishonesty, the warrants would not have been

issued. See Chism v. Washington, 661 F.3d 380, 386 (9th Cir. 2011) (quoting

Liston v. Cty. of Riverside, 120 F.3d 965, 973 (9th Cir. 1997)). Klein’s judicial

deception claims fail at the first step because many of Detective Chilson’s

statements were not deliberately or recklessly false. For example, Detective

Chilson correctly noted Klein’s request that no autopsy be performed on his wife’s

body and Klein’s suggestion that his wife be placed on dialysis treatment.

      2. Even assuming the affidavits contained misstatements or omissions, they

were not “material to the magistrate judge’s probable cause determination.” Id. at

388-89; see also Lombardi v. City of El Cajon, 117 F.3d 1117, 1126 (9th Cir.

1997) (“[W]hen it is not plain that a neutral magistrate would not have issued the



      1
        In a concurrently filed per curiam opinion, we reversed the district court’s
conclusion that Klein’s claim as to the first warrant issued and executed on August
3, 2009, is time-barred. As we explain here, however, Klein’s claims of judicial
deception fail on the merits.

                                          2
warrant, the shield of qualified immunity should not be lost.”). The affidavits

contain ample probable cause separate and apart from any purported

misrepresentations, including: the fact that Klein’s wife was seeking a divorce; his

wife’s statements to others that, three weeks before her death, Klein had threatened

her, claiming that he could “get rid of her” and that “no one would know how she

died;” Klein’s anger at the prospect of a full autopsy; Klein’s phone call to his

probate attorney less than twenty-four hours after his wife’s death to ask about her

financial situation; and the forged signatures on the codicil to his wife’s will.

      AFFIRMED in part; REVERSED in part.




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