United States District Court, D. Arizona
REPORT AND RECOMMENDATION
BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE
Currently pending before the Court are Defendant City of South Tucson and its Officers’ Motion for Summary Judgment (Doc. 72) and Defendants Yolanda Loya, Joseph Mason and Fernando Loya’s Motion for Partial Summary Judgment (Doc. 74). Plaintiffs have filed a single Response (Doc. 88) to both motions, and Defendants have replied (Docs. 91 & 93).
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. Oral argument was held on December 16, 2015, and the matter taken under advisement. Minute Entry 12/16/2015 (Doc. 100). The Magistrate Judge recommends that the District Court grant both motions (Docs. 72 & 74).
I. FACTUAL BACKGROUND
A. The Initial Investigation
On March 14, 2013, City of South Tucson Police (“STPD”) Officer Paul South was on patrol. Defs.’ SOF (Doc. 73), STPD Case No. 1303140019 Case Summary Rpt. (Exh. “A”) at 3. At approximately 5:30 p.m., Officer South smelled a strong odor of raw marijuana in the area of West 35th Street, Tucson, Arizona. Id. The smell was so powerful, that Officer South could smell it from inside of his vehicle. Id. Officer South stopped his vehicle and walked around the area, determining that the odor seemed to be coming from a row of four storage buildings. Id. Officer South contacted officers with the Tucson Police Department’s (“TPD”) Bravo unit, who specialize in drug interdiction. Id.
TPD officers responded and detected the same strong odor. Defs.’ SOF (Doc. 73), Exh. “A” at 3. TPD officers informed Officer South that they were getting a search warrant. Id.; see also Defs.’ SOF (Doc. 73), TPD Case No. 1303140621 Incident Rpt. (Exh. “B”) at 4. The initial warrant was to search 18 West 35th Street, Tucson, Arizona. Defs.’ SOF (Doc. 73), Exh. “A” at 3, Exh. “B” at 4. Officers searched the 18 West 35th Street building, but did not find any marijuana. Id. Accordingly, the search warrant was amended to include 20 West 35th Street. Id.
After entering the 20 West 35th Street building, a large marijuana growing operation was discovered. Id. There were several Marijuana plants in various stages of growth in different rooms throughout the building. Defs.’ SOF (Doc. 73), Exh. “A” at 3. The TPD officers seized the marijuana and other property. Defs.’ SOF (Doc. 73), Exh. “B” at 4; see also Def. City of South Tucson and its officers’ Suppl. to SOF, Exh. “C” (Doc. 81) (hereinafter Defs.’ SOF, Exh. “C”). TPD confiscated 356 marijuana plants, lights, a forklift, a vehicle, and $18, 000.00 in currency. Defs.’ SOF (Doc. 73), Exh. “A” at 3. TPD was able to identify Ron Sisco and Kari Turner as residents of the property based on documents found therein. Id.
B. The Property
Plaintiff Ron Sisco rented the 20 West 35th Street from Yolanda Loya and Joseph Mason. Defs.’ SOF (Doc. 73), Ronald Sisco Depo. 4/8/2015 (Exh. “D”) at 20:1-21:1. At the time of the incident, Plaintiff Ron Sisco rented the building on a month-to-month basis. Id. The 20 West 35th Street building is one of four identical buildings constructed next to one another. Defs.’ SOF (Doc. 73), Fernando Loya Depo. 7/7/2015 (Exh. “E”) at 10:11-11:13, Yolanda Loya Depo. 7/10/2015 (Exh. “F”) at 18:1-6. Yolanda Loya and her husband Joseph Mason own one of buildings and use it as a rental property. Defs.’ SOF (Doc. 73), Exh. “F” at 10:9-24, 15:3-16. Each building has a commercial warehouse in the front portion and a residential quarter in the back half of the building. Defs.’ SOF (Doc. 73), Exh. “E” at 10:11-24, 29:11-25.
C. The Property Owner
On March 16, 2013, Officer South spoke with TPD Sergeant Crowell. Defs.’ SOF (Doc. 73), Exh. “A” at 3. Sergeant Crowell informed Officer South that the property owners were a Federal Bureau of Investigations (“FBI”) agent and a retired Border Patrol Agent out of San Diego, California, whom he had contacted. Id. That same day, Officer South was on patrol in the area and passed by the property at 20 West 35th Street. Id. Officer South saw someone there, and stopped to investigate. Id.
The individual identified herself as the property owner, Yolanda Loya. Defs.’ SOF (Doc. 73), Exh. “F” at 23:2-24:8. Yolanda Loya testified at deposition that Officer South initially treated her as a suspect. Id. When she initially met Officer South, she requested that he call his watch commander. Id., Exh. “F” at 53:16-54:17. Officer South’s commander responded, and Yolanda Loya informed them that she was the property owner, and there to secure the building. Id., Exh. “F” at 23:6-25:15. Yolanda Loya asked her brother Fernando Loya to secure the property and hired a demolition company to remove the wet soil and grow boxes from inside the warehouse. Id.
Yolanda Loya described the interior of the property as having been “trashed.” Defs.’ SOF (Doc. 73), Exh. “F” at 25:16-26:12. Walls had been broken down, wires were hanging everywhere, and there was wet soil and trash throughout the building. Id., Exh. “F” at 24:9-25:15. Yolanda felt her investment in the building had been destroyed. Id.
The following day, Yolanda Loya traveled to Mexico to visit a sick relative. Defs.’ SOF, Exh. “F” at 56:19-57:22. After spending the night in Mexico, she contacted Ron’s parents Ronald and Christine Sisco, who live in Tumacacori, Arizona. Id., Exh. “F” at 29:15-30:18, 56:19-57:22. Plaintiffs Ronald and Christine Sisco allege that Yolanda informed them that she was an agent with the Federal Bureau of Investigations (“FBI”). Plaintiffs Ronald and Christine Sisco further allege that Yolanda brought up her position as an FBI agent “often” during the course of their conversation, as well as mentioning that her husband was a retired federal law enforcement agent. Yolanda testified that she told Ron’s parents that they could have access to the property and obtain their equipment so long as they had Ron sign a statement saying that they had permission to remove the property from the warehouse. Id., Exh. “F” at 32:6-34:13. Ron’s parents told Yolanda that they would have Ron sign a statement, and meet her on the following Monday, March 18, 2013. Id. On Monday, Ron’s parents called Yolanda, and told her that they could not obtain a statement. Id., Exh. “F” at 36:8-24. Yolanda Loya returned to San Diego, California the same day. Id.
On March 18, 2013, Joseph Mason e-mailed Treestump stating that he was retaining the personal property in accordance with the Landlord/Tenant Act, and provided his telephone number and an e-mail address at which he could be contacted to retrieve the property. Defs.’ SOF (Doc. 73), Mason e-mail 3/18/2013 (Exh. “N”). Christine Sisco did not respond to this e-mail until April 3, 2013. Id., Exh. “N.”
D. Ron’s Initial Attempts to Access the Property
On March 21, 2013, Plaintiff Ron Sisco turned himself in to TPD. Defs.’ SOF (Doc. 73), Ron Sisco Depo. 4/8/2015 (Exh. “D”) at 39:1-11, 41:7-18. After Ron was charged, he was released. Id., Exh. “D” at 41:7-18. Ron returned to the property at 20 West 35th Street at approximately 10:00 p.m. the same evening. Id., Exh. “D” at 41:7- 44:4. Ron testified that he noticed that his lock to the front gate had been cut and replaced with another lock. Id., Exh. “D” at 43:2-44:4. Ron further testified that he climbed over the fence, went under the garage door, and gained access to the building. Id., Exh. “D” at 43:2-45:10. Ron noticed that most of his and Kari’s personal property was missing. Defs.’ SOF (Doc. 73), Exh. “D” at 44:24-47:22. Missing property included an expensive ring, musical instruments, and numerous household goods.
The following day, March 22, 2013, Ron called STPD saying that he had a lease on the 20 West 35th Street property, and that his landlord had locked him out. Defs.’ SOF (Doc. 73), Call ID R130810012 Calls for Service Rpt. (Exh. “L”). Ron stated that he wanted to cut the lock off and requested an officer before doing so. Id., Exh. “L.” STPD responded to the call as a civil matter. Id. Officer Cajas’s report states that he advised Ron “that he could not cut the lock on the gate and the police could only preserve the peace.” Id. Officer Cajas further instructed Ron to contact his landlord or contact the landlord/tenant section of Pima County. Id.
Later the same evening, Officer Winston responded to a reported burglary at the property. Defs.’ SOF (Doc. 73), Case Number 1303220031 Case Summ. Rpt. (Exh. “I”). At the property, Officer Winston made contact with Fernando Loya. Id., Exh. “I” at 2. Fernando Loya stated that “Ronald Sisco had recently been arrested for cultivating marijuana on the property . . . and had been released from the Pima County Jail.” Id., Exh. “I” at 2. Fernando Loya also stated that he had changed the locks on the property and begun the eviction process. Id., Exh. “I” at 2. Fernando said that his attempts to contact Ron Sisco had been unsuccessful. Id., Exh. “I” at 2. Fernando Loya wanted to report a burglary, but was unaware of what items belonging to Ron Sisco were missing. Id., Exh. “I” at 2.
Officer Winston spoke to a supervisor regarding the earlier call that day from Ron Sisco regarding the changing of the locks and alleged taking of his property. Defs.’ SOF (Doc. 73), Exh. “I” at 2. The officers determined that this was a civil dispute and took no further action. Id., Exh. “I” at 2. Officer Winston advised Fernando Loya to pursue the process of eviction through the civil court and have service made on Ron Sisco. Id., ...