United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING AS MOOT PLAINTIFF'S MOTION TO STRIKE
ROBERT H. CLELAND, District Judge.
Pending before the court are a Motion for Summary Judgment filed by Defendants County of Oakland, Michael J. Bouchard, and Mark Ferguson on December 8, 2014 (Dkt. # 25) and a Motion to Strike and an Amended Motion to Strike filed by Plaintiff Daniel Price on January 20, 2015 (Dkt. ## 34, 35). Having reviewed the briefs, the court concludes a hearing is unnecessary. See E.D. Mich. LR 7.1(f)(2). For the reasons stated below, the court will grant the Motion for Summary Judgment and deny the Motion to Strike as moot.
The relevant underlying facts are not in dispute and are drawn in the light most favorable to Plaintiff, the non-moving party.
A. The Warehouse
Plaintiff rented a warehouse at 2628 Williams Drive, Waterford Township, County of Oakland, Michigan, from Duane Presson, who also owned Detroit Suburban Lawn Cutting Co. ("Detroit Suburban"). The warehouse was located behind Detroit Suburban. The warehouse comprises four small rooms, a bathroom, and a large open space. There is an entry door at the east end of the building with a vent above and to the left of the door and a louvered vent to the far left. On the west end of the warehouse, there is a rollup garage door and a louvered vent to the right. The north side of the building has no doors, windows, or vents, but does contain an air conditioning unit; there are two small holes, approximately eighty-three inches above the ground, which Plaintiff plugged using rags. The south side of the building butts up to a fence, and has no doors or windows.
Plaintiff grew "medical marijuana" in rooms located toward the east end of the building. Ventilation occurred by way of an exhaust fan which ran on a timer from midnight to noon. The fan blew the air out of the rooms into the open space, which then exhausted up and out through the roof.
B. The Tips
Marc Walker was a long-time employee of Detroit Suburban. Walker became aggravated at the parking situation resulting from Plaintiff's occupation of the warehouse. On one occasion, Walker's car had been blocked by vehicles belonging to the warehouse's occupants. Walker went inside to ask that the vehicles be moved. While inside, Walker observed what he thought to be marijuana. Walker sent an anonymous letter to the Oakland County Sheriff's Department, but received no response. However, Detective Keith Zarembeski received an anonymous tip, presumably Walker's letter, and passed that information on to Defendant Ferguson.
Some days after Walker sent the letter, Pontiac Police Officer Ryan Roberts was at Detroit Suburban to have his personal lawnmower repaired. Walker told Roberts that he believed marijuana was being grown in the warehouse. Roberts told Walker that he would give the information to somebody who handled that sort of complaint. Later that day, Roberts called Defendant Ferguson and passed on the complaint.
C. The Warehouse Exterior Search and Dog Sniff
As a result of the tips, on the evening of June 5, 2011, Ferguson, along with Detective Michael Pankey and Deputy Michael Richardson, as well as Richardson's K-9, "Blitz, " went to the warehouse. Blitz was trained to detect narcotics and certified by the National Association of Professional K-9 Handlers. All three officers claim to have smelled marijuana in the air as they exited their vehicles and walked around the warehouse. Richardson had Blitz conduct a sniff of the warehouse. Blitz was "air scenting" as he approached the building, indicating that he was following an odor. Blitz exhibited a final response on both the bottom seam of the door on the east side of the building and the bottom of the rollup door on the west side of the building. The final response indicated the odor of narcotics.
D. The Affidavit, Search, and Criminal Proceedings
The next day, June 6, 2011, Ferguson swore out an affidavit seeking a search warrant of the warehouse. The affidavit included information about the tip, the officers' observations, and Blitz's response. In addition, the affidavit contains a statement that marijuana was ...