                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 22 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOHN FINKELSTEIN; JENNIFER                      No.    19-15139
FINKELSTEIN,
                                                D.C. No. 3:18-cv-00009-EMC
                Plaintiffs-Appellees,

 v.                                             MEMORANDUM*

VISHAL D. JANGLA,

                Defendant-Appellant,

and

SAN MATEO COUNTY DISTRICT
ATTORNEY'S OFFICE; et al.,

                Defendants.


JOHN FINKELSTEIN; JENNIFER                      No.    19-15497
FINKELSTEIN,
                                                D.C. No. 3:18-cv-00009-EMC
                Plaintiffs-Appellees,

 v.

NICOLAS RYAN,

                Defendant-Appellant,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and

VISHAL D. JANGLA; et al.,

               Defendants.


JOHN FINKELSTEIN; JENNIFER                   No.   19-15511
FINKELSTEIN,
                                             D.C. No. 3:18-cv-00009-EMC
               Plaintiffs-Appellees,

 v.

JEFFREY S. CICHOCKI,

               Defendant-Appellant,

and

VISHAL D. JANGLA; et al.,

               Defendants.

                  Appeal from the United States District Court
                    for the Northern District of California
                  Edward M. Chen, District Judge, Presiding

                     Argued and Submitted April 14, 2020
                          San Francisco, California

Before: GOULD, CHRISTEN, and BRESS, Circuit Judges.

      Detective Nicolas Ryan, Detective Jeffrey S. Cichocki, and Deputy District

Attorney Vishal D. Jangla appeal the district court’s denial of summary judgment

based on qualified immunity.    With jurisdiction under 28 U.S.C. § 1291 and


                                       2
reviewing de novo, Mena v. City of Simi Valley, 226 F.3d 1031, 1036 (9th Cir. 2000),

we reverse on each claim, except for the denial of summary judgment for Deputy

District Attorney Jangla on the judicial-deception claim, which we affirm.1

                                                  I

      The first question we address is whether the Defendants are entitled to

qualified immunity for the probable-cause claims. We answer affirmatively.

      A law enforcement officer is entitled to qualified immunity unless a plaintiff

can prove (1) the officer violated a constitutional right and (2) the right was clearly

established   at   the    time   of    the       conduct.   Pearson     v.   Callahan,

555 U.S. 223, 231–32 (2009). In the context of this case, the question is whether the

Defendants conducted a search without probable cause, and whether the law clearly

established that there was no probable cause. “Only where the warrant application

is so lacking in indicia of probable cause as to render official belief in its existence

unreasonable will the shield of immunity be lost.” Malley v. Briggs, 475 U.S. 335,

344–45 (1986) (citing United States v. Leon, 468 U.S. 897, 923 (1984)); see also

Messerschmidt v. Millender, 565 U.S. 535, 547–48 (2012).

      We hold that the district court erred in denying summary judgment on the

probable-cause claims because, although the Defendants’ belief in the existence of



1
 Because the parties are familiar with the facts and procedural history of the case,
we recite only those facts necessary to decide this appeal.

                                             3
probable cause was incorrect, it was not wholly unreasonable.

      Here, probable cause was predominantly predicated on the connection

between John Finkelstein’s personal email address and a Skype account which was

used in the alleged sexual exploitation of a minor. Whoever registered the Skype

account had entered Mr. Finkelstein’s email address to complete the registration

process.

      Chism v. Washington, 661 F.3d 380 (9th Cir. 2011), recognizes that cyber-

evidence may not be reliable in certain circumstances. Id. at 391. But in Chism, the

affidavit’s affirmative misrepresentations and omissions made the link between the

suspect and the crime more tenuous than here. Id. at 390. Nor does the law as

established by Chism and its predecessors, see, e.g., United States v. Gourde,

440 F.3d 1065 (9th Cir. 2006) (en banc), delineate the boundaries of the doctrine

such that this case is an obvious one. Cf. White v. Pauly, 137 S. Ct. 548, 552 (2017)

(per curiam).

      It was not “entirely unreasonable” for the Defendants to believe that probable

cause existed. Messerschmidt, 565 U.S. at 547 (quoting Leon, 468 U.S. at 923). The

Defendants are therefore entitled to qualified immunity on the probable cause

claims.

                                             II

      The second question we answer is whether Detective Cichocki and Deputy


                                         4
District Attorney Jangla are entitled to qualified immunity on the judicial-deception

claims. We answer affirmatively for Detective Cichocki but negatively for Deputy

District Attorney Jangla.

       To overcome qualified immunity on a judicial-deception claim, a plaintiff

“must 1) make a substantial showing of [an officer’s] deliberate falsehood or

reckless disregard for the truth and 2) establish that, but for the dishonesty, the

[searches and arrest] would not have occurred.” Chism, 661 F.3d at 386 (second

alteration       in   original)   (quoting   Liston    v.   County     of    Riverside,

120 F.3d 965, 973 (9th Cir. 1997)). Here, the issue is whether the Finkelsteins made

a substantial showing that Detective Cichocki’s and Deputy District Attorney

Jangla’s failure to clarify the meaning of the word “valid” was in reckless disregard

for the truth.

                                                 A

       The Finkelsteins made a substantial showing of the recklessness of Deputy

District Attorney Jangla but not of Detective Cichocki.

       The distinction lies in the proof offered, in their disparate relevant experience

and testimony.        The record shows that Deputy District Attorney Jangla has

experience in prosecuting cybercrimes and, in particular, in warrant applications in

cybercrime investigations.        Most importantly, Deputy District Attorney Jangla

testified unequivocally that he was aware that the term “valid email address” meant


                                             5
a string of characters in an email address format, not an email account that Skype

verified by requiring that its registering user interact with a confirmatory email

message. The Finkelsteins made a substantial showing that Deputy District Attorney

Jangla’s failure to clarify the meaning of the word “valid” in the affidavit was in

reckless disregard for the truth.

                                              B

      But this was not so for Detective Cichocki. The record shows that Detective

Cichocki had experience in investigating crimes involving the sexual exploitation of

children but not in investigating cybercrimes. Detective Cichocki’s testimony does

not unequivocally demonstrate that he understood the distinction between a “valid”

and “verified” email address.       Finally, Detective Cichocki’s acquiescence to

Detective Ryan’s suggestion to use the term “valid” to reflect the terminology Skype

itself employs indicates that Detective Cichocki’s actions were not in reckless

disregard for the truth. Detective Cichocki’s lack of knowledge paired with his

passivity in the matter lead us to conclude that the Finkelsteins have not made a

substantial showing as to Detective Cichocki’s recklessness.

                                              III

      We hold that Detective Ryan, Detective Cichocki, and Deputy District

Attorney Jangla are entitled to qualified immunity on the probable-cause claims. On

the judicial-deception claims, we hold that Detective Cichocki is entitled to qualified


                                          6
immunity but Deputy District Attorney Jangla is not.

         AFFIRMED IN PART; REVERSED IN PART.2




2
    The parties shall bear their own costs.

                                              7
                                                                             FILED
Finkelstein, et al. v. Jangla, et al., Nos. 19-15139, 19-15497, 19-15511
                                                                              JUN 22 2020
BRESS, Circuit Judge, dissenting in part:                               MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

      I agree with the majority in all but two respects.

      First, although the court holds that all defendants are entitled to qualified

immunity on plaintiffs’ claims that the search warrant lacked probable cause, the

majority concludes, without analysis, that defendants’ “belief in the existence of

probable cause was incorrect.” In my view, we should not have opined in this

manner on what is an involved and fact-bound constitutional question, especially

when doing so is not necessary to our resolution of this appeal given our

determination that defendants deserve qualified immunity. Pearson v. Callahan,

555 U.S. 223, 237 (2009). I thus do not join this aspect of the court’s disposition.

      Second, I believe we should also reverse the denial of qualified immunity on

the judicial deception claim against Deputy District Attorney Jangla.            I thus

respectfully dissent from Part II.A of the majority’s disposition, which allows this

claim to proceed.

      A judicial deception claim will survive summary judgment on grounds of

qualified immunity only if the plaintiffs make, among other things, “‘a substantial

showing of [a defendant’s] deliberate falsehood or reckless disregard for the truth.’”

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)). Plaintiffs have not met that high
standard as to Jangla, and so he deserves qualified immunity on this claim.

      In this case, and as relevant to the judicial deception claim, someone used a

Skype account to sexually exploit a minor. An investigation revealed the account

was linked to Mr. Finkelstein’s email address, so law enforcement obtained a

warrant to search his home and belongings. The warrant application, which Jangla

reviewed and approved, stated that “[i]n order to create a Skype account a valid email

is necessary” and that Mr. Finkelstein’s email was “used to create” the suspect’s

Skype account.

      The issue is whether it was false or recklessly misleading for the search

warrant application to state that Skype required a “valid” email address, when at the

time Skype did not require registrants to supply a “verified” email address. Because

Jangla testified he understood the difference between a “valid” and “verified” email

address, the majority concludes plaintiffs “made a substantial showing” that Jangla’s

“failure to clarify the meaning of the word ‘valid’ in the affidavit was in reckless

disregard for the truth.”

      I respectfully disagree. The warrant application was accurate on its face:

Skype at the time required only a “valid” email address, and the warrant application

tracked the language on Skype’s own website, which instructed registrants to “[u]se

a valid email address” when creating an account. That Jangla understood the

technical difference between a “valid” and “verified” email address does not connote


                                          2
judicial deception. I am aware of no evidence suggesting that Jangla should have

known that referring to a “valid” email address would misleadingly suggest that a

“verified” address was required, or that a “valid” address is commonly regarded as

a “verified” one. Jangla himself did not believe this. He testified that requiring a

verified email address is not “standard in the industry” and there “are a lot of services

that don’t offer that or don’t require that.”

      I thus cannot conclude that Jangla demonstrated a reckless disregard for the

truth. He did not engage in judicial deception and is entitled to qualified immunity

on this claim.




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