Rustin J. Smith v. City and County of Honolulu

Plaintiff-Appellant Rustin Smith brought an action under

42 U.S.C. § 1983 alleging that his rights under the Fourth

Amendment were violated by police officers employed by

Defendant-Appellee City and County of Honolulu.

Specifically, he alleged that following his arrest on drug

charges that were subsequently dropped, he was improperly

detained by the Honolulu police for approximately 47 hours.

The case went to trial, and the jury returned a verdict in favor

of the City and against Smith. The district court denied

Smith’s post-trial motion for judgment as a matter of law or

a new trial. Smith challenges the denial of his post-trial

motion and the rejection of three proposed jury instructions.

He also alleges purported misconduct by defense counsel,

defense witnesses, and the jury. We affirm.

I. Background

On April 6, 2011, Honolulu police obtained a search

warrant to open a suspicious package that had been

intercepted at the UPS Honolulu facility. The package

contained 500 packets of substances labeled “bath salts”

and “Spike Max.” Initial testing indicated, but did not

confirm, that the packets contained a drug called

methylenedioxypyrovalerone (MDPV), which was illegal in

Hawaii at that time.

Six days later, on Tuesday, April 12, the police made a

controlled delivery to Smith’s home. At 1:40 p.m., after

taking delivery of the package, Smith was arrested without a

warrant for knowing possession of a dangerous drug. A few

SMITH V. CITY & COUNTY OF HONOLULU 5

hours after Smith’s arrest, the police effected controlled buys

of MDPV at two stores owned by Smith. The police seized

evidence from the house and the stores under Hawaii’s

forfeiture statute, Haw. Rev. Stat. § 712A.

Later that day, a police officer completed a sworn

application for a judicial determination of probable cause. A

Hawaii state judge later signed a Judicial Determination of

Probable Cause for the Extended Restraint of Warrantless

Arrestee pertaining to Smith, based on the application. As

the determination itself stated, however, that document was

not signed until 8:07 a.m. on Thursday, April 14, the second

day following the arrest. Ordinarily those documents are

submitted to the court and reviewed by a judge by the next

morning. The police officer who testified on this subject at

trial did not know why the probable cause determination for

Smith was delayed an extra day.

Later that morning, the police received a lab report that

confirmed that the substances were MDPV and conducted

interviews with two of Smith’s employees. At 12:25 p.m.,

the police informed Smith of his rights. Smith invoked his

right to an attorney and did not provide a statement. Smith

was released at 12:45 p.m. pending further investigation.

Smith was never prosecuted on charges related to his arrest.

Smith filed this action in federal district court. In addition

to the Fourth Amendment claim under § 1983, Smith also

asserted various state law claims. Those state law claims

were dismissed by the trial court on the grounds of state law

conditional privilege, a decision that has not been appealed.

The case proceeded to trial on Smith’s § 1983 claim.

SMITH V. CITY & 6 COUNTY OF HONOLULU

During jury deliberations, the court received an

emergency phone call indicating that one juror, the

foreperson, had physically threatened another juror and yelled

at a second. Thereafter the court interviewed jurors

individually, in the presence of counsel. Smith’s lawyer

participated in questioning the jurors. The court counted

three jurors who stated that they could not continue to

deliberate with the foreperson and a fourth who said she

would require security in the room. Smith’s attorney agreed

with this summary and stipulated, along with the attorney for

the City, to the dismissal of the juror in question. The court

then dismissed the juror, and the jury began deliberations

anew with six, instead of seven, jurors.

After the juror was dismissed, the jury deliberated for

another four hours before returning a verdict in favor of the

City. As expressed in a special verdict form, the jury

concluded that Smith had not proven by a preponderance of

the evidence that he was unreasonably detained by the police.

After the trial, Smith’s counsel contacted the dismissed

juror. The juror purportedly “stated that he was not surprised

by the jury’s verdict, that jurors had already made up their

minds ten minutes after arriving at the jury room, and that

those other jurors stated that because Plaintiff was a bad guy,

they weren’t going to rule for him.” Smith submitted this

information to the court in a declaration signed by Smith’s

counsel presented in support of his motion for judgment as a

matter of law or a new trial. In his motion, Smith argued that

the jury’s verdict was against the clear weight of the evidence

and that misconduct by defense counsel and witnesses

improperly painted Smith as a “bad guy.” The court denied

the motion. This appeal followed.

SMITH V. CITY & COUNTY OF HONOLULU 7

II. Discussion

Smith challenges the denial of his post-trial motion and

the rejection of three proposed jury instructions. He also

alleges purported misconduct by defense counsel, defense

witnesses, and the jury.

A. Smith’s Post-Trial Motion

Following the jury verdict, Smith filed a motion entitled

“Motion for Judgment as a Matter of Law or, in the

Alternative, Motion for a New Trial and/or an Evidentiary

Hearing.” The motion seeking judgment as a matter of law

was brought pursuant to Federal Rule of Civil Procedure

50(b) and the motion for new trial under Rules 59 and 60.

Smith did not file a motion for judgment as a matter of

law before the case was submitted to the jury. The City filed

such a motion, and Smith submitted an opposition to the

City’s Rule 50(a) motion in which Smith asked the court to

“grant Plaintiff’s request for directed verdict.” The district

court concluded that it could not construe this request as a

motion under Rule 50(a) and that, as a result, Smith’s posttrial

Rule 50(b) motion was precluded because he had not

filed a timely Rule 50(a) motion. Before this court, Smith

does not assert that the trial court erred by refusing to

construe his request as a Rule 50(a) motion. Thus, although

he argues generally on appeal that the district court’s order

denying his motion for judgment and/or new trial should be

reversed, Smith has waived any argument that the district

court erred in denying his Rule 50 motion for judgment as a

matter of law. See Arpin v. Santa Clara Valley Transp.

Agency, 261 F.3d 912, 919 (9th Cir. 2001).

SMITH V. CITY & 8 COUNTY OF HONOLULU

Similarly, Smith does not assert any arguments on appeal

in reference to Rule 60. Accordingly, the district court’s

ruling as to Rule 60 is not before this court. We therefore

limit our review to the district court’s denial of Smith’s Rule

59 motion for a new trial.

B. Denial of the Motion for New Trial

Smith based his argument for a new trial on the

contention that the evidence was insufficient to support the

jury’s determination that the length of his detention was

reasonable. We review for abuse of discretion a district

court’s denial of a Rule 59 motion for a new trial. Molski v.

M.J. Cable, Inc., 481 F.3d 724, 728 (9th Cir. 2007). In

reviewing for abuse of discretion, we first look to whether the

trial court identified and applied the correct legal rule to the

relief requested. United States v. Hinkson, 585 F.3d 1247,

1263 (9th Cir. 2009) (en banc). Second, we look to whether

the trial court’s resolution resulted from a factual finding that

was illogical, implausible, or without support in inferences

that may be drawn from the facts in the record. Id.

When a suspect is arrested without a warrant, “a

policeman’s on-the-scene assessment of probable cause

provides legal justification for arresting a person suspected of

crime, and for a brief period of detention to take the

administrative steps incident to arrest.” Gerstein v. Pugh,

420 U.S. 103, 113–14 (1975). In order to hold a suspect

beyond the brief period required for administrative steps, “the

Fourth Amendment requires a judicial determination of

probable cause.” Id. at 114.

The “Fourth Amendment permits a reasonable

postponement of a probable cause determination while the

SMITH V. CITY & COUNTY OF HONOLULU 9

police cope with the everyday problems of processing

suspects through an overly burdened criminal justice system.”

Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 55 (1991). A

“jurisdiction that provides judicial determinations of probable

cause within 48 hours of arrest will, as a general matter,

comply with the promptness requirement.” Id. at 56. Thus,

when the police obtain a probable cause determination within

the 48-hour window, the burden is on the plaintiff to prove

that the determination was delayed unreasonably. Id.

“Examples of unreasonable delay are delays for the purpose

of gathering additional evidence to justify the arrest, a delay

motivated by ill will against the arrested individual, or delay

for delay’s sake.” Id.

While it is unreasonable to delay a probable cause

determination to gather evidence justifying the arrest, the

Fourth Amendment “does not prohibit the police from

investigating a suspect while the suspect is legally detained.”

Kanekoa v. City & Cnty. of Honolulu, 879 F.2d 607, 612 (9th

Cir. 1989). The key distinction is whether the investigation

is meant to gather probable cause to justify the arrest. “[I]t is

inimical to the fourth amendment for the police to arrest now,

and investigate later for probable cause.” Id.

Smith was detained nearly 43 hours before the police

obtained a judicial determination of probable cause. He was

released after 47 hours of total detention. Because the police

obtained a probable cause determination within 48 hours

following his arrest, Smith bore the burden at trial to prove

that his detention was unreasonable. McLaughlin, 500 U.S.

at 56.

The jury concluded that Smith was not unreasonably

detained. The jury might have concluded differently, but it

SMITH V. CITY & 10 COUNTY OF HONOLULU

did not. In denying the motion for new trial, the district court

observed that “there was ample evidence that could go either

way” on the issue. We agree with that assessment and agree

that the jury’s verdict was not against the clear weight of the

evidence.

The City provided evidence to the jury regarding the

delay in obtaining the judicial determination of probable

cause to support Smith’s arrest and detention, though it did

not pin down the specific cause. As noted above, a police

officer completed the probable cause application the day

Smith was arrested, but it was not signed by a judge until the

morning of the second day after the arrest. A major in the

police department testified that it was unknown what caused

the delay in processing this application. He explained that the

application would go from the officer to the police desk to the

sheriff’s office to the court clerk to the judge and back, and

that “it could have got[ten] lost anywhere along that line.”

No more specific evidence on the subject was presented to the

jury. An unknown administrative delay is not per se

unreasonable. See McLaughlin, 500 U.S. at 55 (“[T]he

Fourth Amendment permits a reasonable postponement of a

probable cause determination while the police cope with the

everyday problems of processing suspects through an overly

burdened criminal justice system.”).

Smith focused his argument on the fact that the police

continued to investigate him during the nearly 48 hours he

remained in custody. But the police may investigate a

suspect who is legally detained as long as the investigation is

not meant to gather probable cause to justify the arrest. See

Kanekoa, 879 F.2d at 612. The City argued that the probable

cause application that was submitted for Smith only stated

facts that the police knew when they arrested him. That

SMITH V. CITY & COUNTY OF HONOLULU 11

application was signed and sworn to on the day of Smith’s

arrest, and it was not altered or supplemented with additional

evidence gathered following the arrest.1

Smith also contended, to the district court and to us, that

the delay was unreasonable because it was due to ill will or

animus on the part of police officers toward Smith. The jury

was not persuaded, and the district court rejected this

argument when offered to support the motion for a new trial.

The court did not abuse its discretion in doing so. The

evidence in the record to support the claim of animus was

skimpy at best. Smith did not dispute that the police had

obtained a warrant based on probable cause to search the

suspicious package that became the subject of the controlled

delivery. Nor did he dispute the judicial determination of

probable cause made by the state court judge based on

information the police had at the time of Smith’s arrest. The

fact that police officers investigated suspected criminal

activity is not powerful evidence of ill will. It was not an

abuse of discretion for the district court to deny the motion

for a new trial.

C. Jury Instructions

Smith challenges the district court’s rulings rejecting

three of his proposed jury instructions. “We review a district

court’s formulation of civil jury instructions for an abuse of

1 The parties argue about whether the investigation qualified as being

among “administrative steps incident to arrest” permitted by Gerstein. See

420 U.S. at 113–14. But that is not the right question. Given that the

investigation did not delay the probable cause determination, it does not

matter whether the investigation could be categorized as an

“administrative step.”

SMITH V. CITY & 12 COUNTY OF HONOLULU

discretion, but we consider de novo whether the challenged

instruction correctly states the law.” Wilkerson v. Wheeler,

772 F.3d 834, 838 (9th Cir. 2014). “We do not reverse the

judgment if the alleged error in the jury instructions is

harmless.” Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079,

1087 (9th Cir. 2005).

First, Smith argues that the district court erred by refusing

his proposed instruction asserting a claim for an unreasonable

seizure of property. The court determined that Smith had not

presented such a claim in his complaint. A pleading must

contain “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “A

complaint guides the parties’ discovery, putting the defendant

on notice of the evidence it needs to adduce in order to defend

against the plaintiff’s allegations.” Coleman v. Quaker Oats

Co., 232 F.3d 1271, 1292 (9th Cir. 2000). A defendant

suffers prejudice if a plaintiff is allowed to proceed with a

new theory of recovery after close of discovery. Id.

Smith’s complaint contained only one constitutional cause

of action, entitled “42 U.S.C. § 1983.” The paragraphs

contained in that cause of action focused on the length of

Smith’s detention and the allegedly improper “48-hour rule.”

While Smith’s property was mentioned in some paragraphs

in the complaint, the references were not enough to put the

City on notice that Smith was bringing a claim for an

unreasonable seizure of property. Further, the complaint did

not raise any argument as to why the application of Hawaii’s

forfeiture statute, Haw. Rev. Stat. § 712A, violated Smith’s

federal constitutional rights. Accordingly, the district court

did not abuse its discretion in rejecting this instruction.

SMITH V. CITY & COUNTY OF HONOLULU 13

Second, Smith argues that the court should have given a

jury instruction stating that the failure to admit a suspect to

bail constituted a violation of state law as well as the

suspect’s Fourteenth Amendment due process rights. The

court had previously granted summary judgment against

Smith on his state law claims on the grounds of state law

conditional privilege. Smith has not disputed that ruling on

appeal. Thus, the sole claim at trial was brought pursuant to

§ 1983. A “claim for violation of state law is not cognizable

under § 1983.” Cornejo v. Cnty. of San Diego, 504 F.3d 853,

855 n.3 (9th Cir. 2007) (citing Barry v. Fowler, 902 F.2d 770,

772 (9th Cir. 1990)). Thus, the court was correct to refuse the

instruction to the extent that it asserted a state law violation.

Although there was no available state law claim, state

laws can create liberty interests that are subject to protection

under the Fourteenth Amendment. Smith argues that Hawaii

law created such a protected liberty interest. See Oviatt By &

Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir.

1992). Pursuant to the Hawaii Rules of Penal Procedure, an

arrested suspect is to be admitted to bail without unnecessary

delay. Haw. R. Penal P. 5; see also State v. Perez, 141 P.3d

1039, 1044 n.4 (Haw. 2006) (explaining that the

“unnecessary delay” standard applies to suspects arrested

with or without a warrant). Based upon this Rule, the

Supreme Court of Hawaii has held that misdemeanor suspects

have a right to release upon payment of bail. Perez, 141 P.3d

at 1042 (“[A] person arrested for a petty misdemeanor or

misdemeanor offense possesses not an absolute right to

release, but rather a right to release without unnecessary delay

upon payment of bail.” (quotation marks omitted)).

We have not found a case indicating that the right applies

equally to felony suspects. It could be argued that it does not

SMITH V. CITY & 14 COUNTY OF HONOLULU

apply equally to felony suspects because Hawaii law treats

felony suspects differently than misdemeanor suspects for

purposes of bail. See Haw. Rev. Stat. § 804-3(a), (b).

We do not need to construe Hawaii law on this issue,

however, because Smith was not harmed by the exclusion of

this instruction. The purported right was the right to be

admitted to bail “without unnecessary delay.” Perez,

141 P.3d at 1044 n.4 (2006). The jury concluded that Smith’s

detention was not unreasonably extended before the

determination of probable cause. We are not persuaded that

the jury could have found bail unnecessarily delayed after

having found that the determination of probable cause was

not unreasonably delayed. Accordingly, we would not

reverse the district court as to this instruction even if there

were an error. See Altera Corp., 424 F.3d at 1087 (explaining

that a harmless error in the jury instructions does not merit

reversal).

Third, Smith argues that the court should have instructed

the jury that it was not legally permissible to arrest him for

possessing MDPV without evidence that he had actual notice

that the drug was illegal. Smith was arrested for a suspected

violation of a Hawaii statute which made it a crime to

“knowingly” possess, distribute, or manufacture a dangerous

drug. Haw. Rev. Stat. § 712-1241. The knowledge

requirement in criminal statutes can generally be met by

knowing possession of an illegal drug, even if the defendant

did not know that the drug was listed in a criminal statute.

See, e.g., McFadden v. United States, 135 S. Ct. 2298, 2304

(2015). Hawaii law is consistent. “[M]ere ignorance of the

law constitutes no defense to its enforcement.” Office of

Disciplinary Counsel v. Au, 113 P.3d 203, 216 (Haw. 2005)

(citation omitted). Moreover, Smith’s arrest required

SMITH V. CITY & COUNTY OF HONOLULU 15

probable cause, not definitive proof of all elements of the

offense. Smith did not dispute that the original search warrant

for the package was based on probable cause, that Smith was

arrested after opening the package following the controlled

delivery, or that the Hawaii court entered a determination that

there was probable cause for his arrest based on the affidavit

submitted by the police officer. The district court was

therefore correct to reject the proposed instruction.

D. Attorney and Witness Statements

Smith challenges certain statements made by defense

counsel and witnesses during trial. Smith did not object to

those statements before the case went to the jury. We review

for plain error when a party fails timely to object to attorney

argument or witness testimony. See Bird v. Glacier Elec.

Coop., Inc., 255 F.3d 1136, 1148 (9th Cir. 2001). The plain

error doctrine authorizes us to correct “only particularly

egregious errors that seriously affect the fairness, integrity or

public reputation of judicial proceedings.” United States v.

Sanchez, 659 F.3d 1252, 1256 (9th Cir. 2011) (alterations and

internal quotation marks omitted).

Smith fails to cite any improprieties that rise to the level

of plain error. First, City witnesses characterized Smith’s

house as a warehouse or a storage and distribution center for

drugs and testified that Smith was a major drug dealer with a

very elaborate drug distribution network. It was not plain

error for the court to allow this testimony absent objection.

Second, during closing argument, defense counsel referred to

a “tub of additional substances” found on Smith’s property,

a reference that was not supported by any evidence. The

district court acknowledged that the reference was improper,

but the court determined that it was unlikely to have swayed

SMITH V. CITY & 16 COUNTY OF HONOLULU

the jury. We agree and conclude that the reference was

harmless. Accordingly, it was not plain error for the court to

allow the reference absent objection.

E. Juror Dismissal

Smith argues that the district court erred by dismissing a

juror who had threatened another juror and yelled at a second

juror. We review a district court’s dismissal of a juror during

deliberations for abuse of discretion. United States v.

Symington, 195 F.3d 1080, 1085 (9th Cir. 1999). We also

review a district court’s denial of a motion for a new trial on

the asserted ground of juror misconduct for an abuse of

discretion. United States v. LaFleur, 971 F.2d 200, 206 (9th

Cir. 1992).

Smith supported his motion for new trial with a

declaration by his attorney reporting hearsay statements by

the dismissed juror. As an initial matter, when deciding

Smith’s motion for a new trial, the district court should not

have considered the hearsay declaration. Rule 606 of the

Federal Rules of Evidence establishes a no-impeachment rule,

prohibiting the use of a juror’s statement to attack the validity

of a verdict. Rule 606 provides that during an inquiry into the

validity of a jury verdict, “a juror may not testify about any

statement made or incident that occurred during the jury’s

deliberations.” Fed. R. Evid. 606(b)(1). “The court may not

receive . . . evidence of a juror’s statement on these matters.”

Id. None of the limited exceptions to the no-impeachment

rule apply in this case. See Fed. R. Evid. 606(b)(2); Pena-

Rodriguez v. Colorado, 137 S. Ct. 855 (2017).

Even taking the hearsay statement into account, it was not

an abuse of discretion for the court to dismiss the juror, nor

SMITH V. CITY & COUNTY OF HONOLULU 17

was it an abuse of discretion for the court to deny a new trial

on the basis of the juror’s dismissal. The “district court is in

the best position to evaluate the jury’s ability to deliberate.”

Symington, 195 F.3d at 1085 (alterations and quotation marks

omitted). The district court evaluated the statements and

demeanor of each juror. At the time, after hearing from the

jurors and participating in their questioning, Smith’s attorney

stipulated to the dismissal of the juror. Based on these

evaluations and the undisputed finding that one juror had

threatened another, it was not error for the court to exclude

the threatening juror.

Smith points to Symington, in which we held that “if the

record evidence discloses any reasonable possibility that the

impetus for a juror’s dismissal stems from the juror’s views

on the merits of the case, the court must not dismiss the

juror.” Symington, 195 F.3d at 1087 (emphasis in original).

The hearsay statement did suggest that the jurors had

different views on the merits of the case. But given that it

was undisputed that the dismissed juror had threatened

another juror and that the attorneys for both parties agreed

with the dismissal, there was ample support for the district

court’s conclusion that the juror was dismissed for the threat

of violence and not due to his views on the merits. That the

jury continued to deliberate for four hours after that juror was

dismissed also bolsters the conclusion that the charges against

the dismissed juror were not motivated by the desire of other

jurors to reach a verdict without him.

III. Conclusion

The district court did not err in denying Smith’s post-trial

motion or in rejecting Smith’s proposed jury instructions.

Smith has not established plain error with regards to the

SMITH V. CITY & 18 COUNTY OF HONOLULU

purported attorney and witness misconduct. The district court

did not err in dismissing, with Smith’s agreement, a juror who

threatened another juror.

AFFIRMED.