Benjamin John DETROY, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU, a municipal corporation; Honolulu Police Department; Lee Donahue, Chief of Police; Jonathan Wong; Does, 1-30, inclusive, Defendants-Appellees, 271 F. App'x 554

MEMORANDUM The district court properly granted Wong qualified immunity on Detroy’s claim that Wong’s search warrant application caused an unconstitutional search of his apartment. Detroy failed to show that a reasonable officer in Wong’s position would have known the warrant application was so obviously devoid of probable cause that he never should have applied for the warrant. See Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Although the Supreme Court ultimately held that thermal imaging constitutes a search that requires a warrant, see Kyllo v.

United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the question had certainly not been clearly decided at the time of the search in this case; indeed, this court held soon after the warrantless thermal imaging of Detroy’s home that such activity did not constitute a search, see United States v. Kyllo, 190 F.3d 1041, 1043 (9th Cir.1999), rev'd, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). Therefore, an officer in Wong’s position in 1997 would have reasonably believed that thermal imaging results could be considered by a judge in evaluating the totality of the circumstances.

The district court also properly ruled that Detroy failed to show that Wong’s affidavit in support of the warrant application contained material falsehoods or omissions. See Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir.2002) (per curiam). Detroy failed to allege anywhere in his complaint a cause of action under 42 U.S.C. § 1983 related to the media’s presence during the execution of the search warrant. Indeed, in his briefs to this court, Appellant’s counsel labeled the claim as a state law privacy claim brought under his fifth cause of action for negligence.

In its responsive brief, the Appellees argued correctly that Detroy failed to present any Hawaii legal precedent to support his state law right of privacy claim. During oral argument, Detroy’s counsel repeatedly referred to his claim as a state cause of action. Further, the district court properly ruled on

summary judgment that Detroy had failed to establish a prima facie case since he could not establish through discovery how the television cameraman and reporter even arrived at Detroy’s apartment during the search. The videotaped evidence filmed by a police photographer of the news crew arrival may be sufficient to establish a claim for trespass or invasion of privacy under Hawaii law.

Therefore, because Appellant concedes that he did not properly allege a claim under § 1983, and the district court properly ruled that there was insufficient evidence to support a civil rights claim after over a year of discovery, remanding for amendment of the pleadings would be futile. On this record there is no need to reach the question of entitlement to qualified immunity. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.