                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 07 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CAROLE SAUNDERS,                                 No. 11-15134

              Plaintiff - Appellee,              D.C. No. 3:07-cv-08029-EHC

  v.
                                                 MEMORANDUM *
RICHARD SILVA and CONNIE LYNN
SILVA,

              Defendants - Appellants.



                   Appeal from the United States District Court
                            for the District of Arizona
                  Earl H. Carroll, Senior District Judge, Presiding

                        Argued and Submitted May 15, 2012
                             San Francisco, California

Before: REINHARDT, CLIFTON, and N.R. SMITH, Circuit Judges.

       Richard Silva appeals from the district court’s order entering judgment

against him on Carole Saunders’s claim that Silva violated her Fourth Amendment

right to be free from unreasonable search and seizure.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court found that Silva seized Saunders when he ordered her to

leave church and return to her home. It further found that this seizure was

unreasonable because Silva, as a Deputy Animal Control Officer within the

Yavapai County Sheriff’s Office, lacked the authority to conduct an arrest.

Although Silva was not authorized under Arizona law to arrest Saunders, “state

restrictions [on arrest authority] do not alter the Fourth Amendment’s protections.”

Virginia v. Moore, 553 U.S. 164, 176 (2008). To constitute a Fourth Amendment

violation, an arrest by a state officer must be unreasonable under the United States

Constitution, rather than simply not in compliance with state laws. See United

States v. Becerra-Garcia, 397 F.3d 1167, 1174-75 (9th Cir. 2005).

      In general, the “constitutionality of a warrantless arrest is determined by the

existence of probable cause.” Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990).

In this case, Silva observed, at Saunders’ residence, animals with no water and

animals that Saunders was not permitted to possess under the terms of her

probation agreement. Probable cause exists when “the facts and circumstances

within the officer’s knowledge are sufficient to warrant a prudent person to believe

that the suspect has committed . . . an offense.” Id. at 773 (internal citation and

quotation marks omitted). Based on Silva’s observations, he had sufficient cause

to believe that Saunders had committed a misdemeanor violation of Arizona’s


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animal control law. See Ariz. Rev. Stat. § 13-2910(A)(1). “If an officer has

probable cause to believe that an individual has committed even a very minor

criminal offense in his presence, he may, without violating the Fourth Amendment,

arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

Silva’s arrest of Saunders, although outside of the scope of his authority, was

supported by probable cause, and thus the mere fact of her arrest did not violate the

Constitution.

      Although “[a]n otherwise lawful seizure can violate the Fourth Amendment

if it is executed in an unreasonable manner,” United States v. Alverez-Tejeda, 491

F.3d 1013, 1016 (9th Cir. 2007), the district court did not consider whether the

manner in which Saunders was seized was unreasonable, and the Appellee did not

raise this argument on appeal. We therefore do not consider any other potential

sources of unreasonableness and hold that Silva’s seizure of Saunders, supported

by probable cause, was not unreasonable under the Fourth Amendment. We

reverse the judgment of the district court and remand for the entry of judgment in

favor of Silva.

REVERSED and REMANDED




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