                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                                                                            JUL 26 2010
                            FOR THE NINTH CIRCUIT
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS




LORI BELTRAN; COBY BELTRAN, by                   No. 09-16339
and through his Guardian Ad Litem Lori
Beltran,                                         D.C. No. 5:03-cv-03767-RMW

              Plaintiffs-Appellants,
                                                 MEMORANDUM *
  v.

SANTA CLARA COUNTY; MELISSA
SUAREZ, individually and as an employee
of the County of Santa Clara; EMILY
TJHIN, individually and as an employee of
the County of Santa Clara,

              Defendants-Appellees.



                  Appeal from the United States District Court
                      for the Northern District of California
                Ronald M. Whyte, Senior District Judge, Presiding

                        Argued and Submitted July 13, 2010
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FERNANDEZ and TALLMAN, Circuit Judges, and HOGAN, Senior
District Judge.**

      Appellant Lori Beltran, individually and as Guardian Ad Litem for

Appellant Coby Beltran, appeals the district court’s decision granting summary

judgment in favor of Santa Clara County social workers Emily Tjhin and Melissa

Suarez in this 42 U.S.C. § 1983 action. The Beltrans claim their civil rights were

violated when Tjhin and Suarez obtained a judicial warrant to take protective

custody of Coby based on a petition that the Beltrans allege contained material

misrepresentations and omissions. During the proceedings below, Tjhin and

Suarez maintained that they were entitled to qualified immunity for their actions to

secure the protective custody warrant and the district court so held. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      To prevail on summary judgment and defeat Tjhin’s and Suarez’s assertions

of qualified immunity the Beltrans must (1) make a substantial showing that the

challenged warrant petition contained misrepresentations or omissions that were

deliberate falsehoods or demonstrated a reckless disregard for the truth and (2) the

misrepresentations or omissions were material because probable cause could not be

established without them. Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir. 2002);


       **
              The Honorable Thomas F. Hogan, Senior United States District Judge
for the District of Columbia, sitting by designation.

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Liston v. County of Riverside, 120 F.3d 965, 973 (9th Cir. 1997); Hervey v. Estes,

65 F.3d 784, 789 (9th Cir. 1995).

      “We . . . review de novo the application of qualified immunity.” Hervey, 65

F.3d at 788. De novo review is applied to the ultimate determination of whether

misrepresentations or omissions in a warrant affidavit are material and thereby

negate probable cause. Greene v. Camreta, 588 F.3d 1011, 1035 (9th Cir. 2009).

Assuming the warrant affidavit was revised as the Beltrans urge, we ask whether

the revised application establishes probable cause as a matter of law. See Liston,

120 F.3d at 973–74.

      The Beltrans contend on appeal that nine omitted categories of fact render

the protective-custody warrant petition misleading and nine statements constitute

misrepresentations. We do not address whether these alleged misrepresentations

and omissions constitute a “substantial showing” of deliberate falsity or reckless

disregard for the truth, however, because this case can be resolved by determining

the materiality of the alleged misrepresentations and omissions, assuming the

Beltrans could establish them to the satisfaction of a reasonable factfinder. We

agree with the district court that the statements and omissions are not material

because, after amending the warrant to omit the alleged misrepresentations and add




                                          3
the alleged omissions, see Ewing v. City of Stockton, 588 F.3d 1218, 1224 (9th Cir.

2009), probable cause still exists.

      Our conclusion is not altered by the Beltrans’ complaint that the warrant

petition relies on hearsay because we have stated before that “the Fourth

Amendment allows for a determination of probable cause based on hearsay

testimony,” Peterson v. California, 604 F.3d 1166, 1171 n.4 (9th Cir. 2010), and

government officials “may rely on hearsay and other evidence that would not be

admissible in a court to determine probable cause,” Hart v. Parks, 450 F.3d 1059,

1066 (9th Cir. 2006).

      Finally, the Beltrans misunderstand the context of the “telling the total

story” language that originates in this Court’s decision in United States v. Stanert,

762 F.2d 775 (9th Cir. 1985). The Beltrans seek to expand the scope of this

language to require that a warrant affidavit include any information a plaintiff

deems favorable to his or her cause. In the Stanert decision, however, we were

referring to nothing more than the simple fact that an affidavit can deceive a judge

not only by containing express misrepresentations but also by omitting information

that renders an otherwise truthful statement to be false or misleading, in which case

the omitted information has prevented the “total story” from being “told.” 762

F.2d at 781. We previously have stated that “the omission rule does not require an


                                           4
affiant to provide general information about every possible theory, no matter how

unlikely, that would controvert the affiant’s good-faith belief that probable cause

existed . . . .” United States v. Craighead, 539 F.3d 1073, 1081 (9th Cir. 2008);

accord United States v. Johns, 948 F.2d 599, 606 (9th Cir.1991).




      AFFIRMED.




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